Reading the various news reports on Rosmah Mansor’s court application yesterday, I feel compelled to make my comments here.
It is clear from the latest media reports on Rosmah that an issue in law, and prosecutorial powers as well, have arisen from her allegedly repeated attempts to recuse Gopal Sri Ram.
Let’s not miss the forest for the trees.
If an issue goes back and forth in court, there being no end in sight, it cannot be determined with any degree of certainty when there would be closure. Of course, Sri Ram can always bring closure on the matter by recusing himself since it is a personal matter. Still, it is unlikely that Rosmah will abandon her attempts against him as long as the matter can go back and forth in court.
Indeed, Sri Ram even keeps defending himself, not the done thing, on the matter.
His defence on the matter should be left to other lawyers who may be able to keep emotions in check. In law, those in practice cannot be emotional. That gets in the way of reason and logic. Law is devoid of emotion.
The court is only about law, not truth. There is a difference between truth and the truth.
To digress a little, Jesus explained Truth from which arises all eternal laws including all the laws of science, MACC Chief Azam Baki mentioned he was about the truth.
Also, the court isn’t about ethics, moral values, theology, sin, God or justice. The last term differs from the principles of natural justice, one of the three criteria in the law, the other two being common sense and universal values.
The court, cannot in good conscience, direct on recusal against the parties in dispute on issues in conflict. It must allow the controversy on recusal for example to play out until the logical conclusion.
Having said that, the court can once and for all interpret the intention of the Attorney General, based on the spirit of the law and the exact wording in the letter which allegedly was backdated, on Sri Ram’s appointment. It is a principle in law that “legislation” cannot be retrospective — i.e. backdated for enforcement — but prospective viz. applying to a future date.
Wide Interpretation Of Law
So far, the court’s decisions on previous recuse attempts avoided taking a wide interpretation of law. The court should resist putting on blinkers, a term which by the way comes from horses on the race track.
The rule of law is the basis of the Constitution.
In the rule of law, it cannot be said often enough that there is a greater emphasis on the spirit of the law, read with the letter of the law.
At the risk of repetition, we can refer to Chief Justice Richard Malanjum’s brilliant farewell address on the rule of law. He was taking issue with the shortcomings of various parties including lawyers, the legal fraternity, Bar Council, the AGC (Attorney General’s Chambers), the court and the judiciary. Except for the law schools, he spared no one, albeit by implication.
We can take issue with law education as well. The fish rots from the head.
Malanjum’s farewell address and Attorney General Tommy Thomas’ allegations against the AGC in his Memoirs, “My Story: Justice in the Wilderness” go together like hand and glove.
It can’t be argued by Sri Ram that he has carte blanche from the AG even if the letter mentions only two specific cases.
Lawyers are more comfortable with the letter of the law, which by itself isn’t law at all.
The court is helpless if both sides harp on the letter of the law.
Gopal Sri Ram was harping on the letter of the law only when defending his appointment.
Rosmah’s lawyer pointed out the flaw in his argument and about him being “kurang ajar” (rude).
Again, the onus is on Sri Ram, the court aside, to “keep his dignity intact” and recuse himself. That will end the repeated attempts to recuse him. It will bring closure on the matter which only serves to highlight Malanjum’s and Tommy Thomas’ take on the AGC, among others.
In principle, the AGC should not engage lawyers in private practice for its cases. It defeats the purpose of having the AGC.
Even if the AGC isn’t up to the mark, as alleged by Attorney General Tommy Thomas in his Memoirs, the legal body risks public scandal, odium and contempt by engaging lawyers in private practice for the prosecution.
The AG has to live with the AGC if it’s true that the latter has emerged, for want of a better term, as a Frankenstein monster.
If the AGC claims that engaging lawyers in private practice for prosecution would in fact “level the playing field”, it would be kinder not to comment. – New Malaysia Herald
Longtime Borneo watcher Joe Fernandez has been writing for many years on both sides of the Southeast Asia Sea. He should not be mistaken for a namesake formerly with the Daily Express in Kota Kinabalu. JF keeps a Blog under FernzTheGreat on the nature of human relationships.
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