‘The law is an ass’

“If that’s what the law says, then the law is an ass.”

These words are famously associated with Charles Dickens’ 1838 novel, Oliver Twist. However, the expression appeared in print much earlier, in the 1654 play Revenge of Honour: “The law is such an ass.”

It refers to the foolish or rigid application of the law when it defies common sense, humanity or reality.

This remains true today. Our legal ecosystem appears trapped in a time warp.

Consider a recent case in which the High Court rejected a man’s bid to secure Malaysian citizenship for his stateless son, despite DNA tests establishing their biological relationship.

The son has lived in Malaysia since he was three months old, has no birth certificate and has never held citizenship of any country.

Born in Thailand to a Malaysian father and Thai mother, he was ruled ineligible for citizenship by operation of law because his parents could not prove they were legally married when he was born.

The court held that Section 17 of Part III of the Second Schedule of the Federal Constitution applied, treating the child as born out of wedlock. Under that provision, references to the father of an illegitimate child are construed as references to the mother for citizenship purposes.

Unless the law changes, such inflexibility will remain. University students should examine such social issues, particularly cases involving children born out of wedlock.

Politics may prove even more confusing.

Many will recall a former federal minister convicted of murdering his political opponent in the 1980s. His death sentence was commuted to life imprisonment by the Pardons Board, and he was released about eight years later after receiving a royal pardon.

Does this mean society condones murder? Over the years, pardons have been granted to numerous convicted individuals on the merits of their cases, with few questions raised. Can it therefore be argued that society condones their crimes? Politicians and students alike should understand this distinction.

Fast-forward 30 years, and we are debating an unrelated corruption case in which the same discretionary powers of the Federal Territories Pardons Board (FTPB) have been exercised. Yet there are now claims that granting a pardon amounts to condoning corruption.

It is deeply saddening when such arguments come from senior political leaders, including the apparent political theatre surrounding a minister’s decision to step down on the day an individual moves into his home to serve the remainder of his sentence under house arrest.

The granting of pardons by the FTPB, chaired by the King, is part of the legal framework, following a process in which individuals are charged, convicted and sentenced after due process.

The law applies to everyone. Article 8 of the Federal Constitution guarantees equality before the law. Article 8(1) states that all persons are equal before the law and entitled to equal protection.

If the law applies when someone is convicted, it must also apply when a pardon is considered. Should a person be denied the opportunity to seek one because of his standing in society?

Why demand the minutes of an FTPB meeting or suggest something is amiss merely because of the individual involved? To do so without credible evidence implies that not everyone is equal before the law. Could the legal process itself also have been compromised because of the individual’s standing?

Questions have also been raised about the “donations” used to pay the fine, with aspersions cast over their source. These were funds belonging to a political party. Why should anyone dictate how another party uses its funds if they are not members?

We appear blinded by political opportunism, bordering on vengeance. What matters is the spirit of the law.

The recent actions of the Attorney-General’s Chambers (AGC) in Najib Razak’s case have left a bitter aftertaste, regardless of the legal questions surrounding errors in court documents, apparently caused by a lack of scrutiny.

This begs the question: who is the ass here – the law, the drafters, those responsible for scrutinising the documents or those interpreting the discharge order?

Why was the issue raised at the last minute, despite the legal arguments over the wording of the discharge order? Many are now up in arms over the AGC’s position.

This has fuelled interpretations of the motives behind the move. When one institution has two functions – advising the government and acting as public prosecutor – perceptions can easily become tainted.

As a nation, we remain trapped in a political time warp of unholy alliances, racial and religious slurs, and relentless backstabbing, at the expense of more pressing issues.

All parties must stop linking the royal pardon and house-arrest arrangement to condoning corruption. It is demeaning.

A royal decree is a royal decree. We must live with it, while one particular individual gets on with finding another day job.

The views expressed are those of the writer and do not necessarily reflect those of FMT.

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