Law not for every Tom, Dick and Harry

Law is not for every Tom, Dick and Harry.

Law, ultimately, is the power of language.

LETTER / Law graduates unprepared for pupillage?

Lawyers should take note that no court will go against the Agong, for example.

The Agong’s decision to appoint a backdoor PM on 1 Mar 2020 refers. He also disregarded the PM’s Advice to consent to the Declaration of Emergency and also advised MPs on Budget 2021. That irked some law students. The police turned up on their doorsteps and probed them under the Sedition Act.

The law students claimed freedom of speech and academic freedom. That’s another story. Let’s not go there.

Having said that, exercise the right of free speech to speak up and speak out on matters of public concern and public interest.

Exercise the right of freedom of conscience.

The Agong may acquire political power from time to time, albeit temporarily, if politicians keep running to the Istana and hide behind the Agong’s kain Pelikat sarung from Tamil Nadu.

If I was Agong, I will withdraw executive authority delegated to the backdoor PM and exercise it directly until GE15. That would at least temporarily stop the “I have the numbers” guy and the frogs running amok.

This would be a novel development in law.

Some things are beyond the law, Constitution, conventions, court, and even common sense. It’s said that common sense is not so common.

Let’s see whether US President Trump, for example, returns Jan 20 to the White House for a 2nd Term and proves that he’s a genius. His return will send the legal fraternity and the media into a frenzy.

Common sense is one of the three criteria in law, the other two being universal values and the principles of natural justice.

Law exists, and has always existed, based on the three criteria.

Anything can happen in court. A “winning” case can be lost, a “losing” case won.

Having said that, those who lose in court have a right to know why they lost.

Anyone can go to court on anything and say anything if an Application is accepted. The court, under our adversarial system of justice, will not interfere.

Lawyers look for the law and point it out to the court.

It’s the parties in dispute, on issues in conflict, that decide. The court merely finds the law.

The court knows what to disregard. If the court does not disregard what should be disregarded, a party in dispute may be in trouble. That happened in Najib’s RM42m SRC International case.

Even so, the judge was kind enough to note that Najib did not return the RM42m. I advised Najib, taking the cue from the judge’s comment, to return the RM42m and throw himself at the mercy of the court in mitigation. (My blog piece began, “If I was Najib . . .)

It takes brilliance to be in law. It’s also about being willing to exercise the right of free speech and speaking up and speaking out on matters of public concern and public interest.

We don’t have brilliant lawyers.

It takes a high level of skills to be a brilliant lawyer.

That’s why we don’t see novel developments in law for the court to declare them.

The court in Malaysia is also the pits. It does not hesitate to leave matters to the syariah court at the slightest pretext. This is really alarming.

According to jurisprudence, God is not a source in law.

Law must have source to have jurisdiction, authority and power.

Islam is not about law but based on the concept of sin.

Sin is not crime unless it can be criminalised.

Syariah courts in Malaysia are not based on Islam, Quran, Allah, Mohd, sirat, hadiths and fatwa. There’s politics behind the existence of Syariah courts and Islamic finance and banking.

Syariah courts are based on a little known amendment in the Federal Constitution which facilitates state assemblies in the sultanates in Malaya to empower Syariah courts on personal and family law.

There can be no discrimination under the law. Article 8.

No people can be judged by two separate laws for the same “crime” or “offence”.

It was also CJ Richard Malanjum who reminded lawyers and the court not so long ago, in a farewell address, that the letter of the law is not the sum total of the rule of law, the basis of the Constitution.

There’s greater emphasis in the rule of law, added Malanjum, on the spirit of the law.

This is where our lawyers and the court falls apart. They are weak in constitutional law and jurisprudence.

If the CJ has to remind lawyers and the court on the rule of law, what does it tell us about law in Malaysia and Malanjum.

The former CJ will go down in history for his statement on the rule of law.

Law, ultimately, is the power of language, according to the University of London. “We will first mark you for the English language.”

Most of our lawyers can’t put even two words together to form a decent sentence.

I don’t know whether reforms in legal education will factor in AI, the most serious threat in law practice.

The threat is serious because in its intelligence, AI lacks common sense. It’s a robotic version of loyar burok stuff in the kopi tiam and kangkungology in law

Lawyers should take note!

Malaysia needs to reform legal education by dropping the requirement that only LLB graduates can do the CLP.

In England and Wales, reforms due by Sept 2021 will do away with the need to have LLB to be admitted to the High Court.

Non-law degree holders will be accepted to go through a law conversion course, six months to 18 months, before sitting for the Solicitor’s or Advocate’s examination. The Bar exams will also continue to exist.

The changes have been a long time coming.

In fact, the law conversion course has existed for some time in England. Malaysia’s CLP does not accept this qualification.

The University of London has been warning its LLB students for years that “LLB, being an academic degree, does not prepare graduates to do court room work. It’s public perception, gov’ts, and the Bar Council that demands that lawyers must have the LLB to be admitted to the High Court”.

“It’s not possible for anyone to know the law.”

The UOL feels the best way to read law is to attend court cases, read media reports on court cases, go through the Constitution, Acts of Parliament, case law and law reports and have a Mentor.

At present, the court allows anyone to Act in Person but only in his or her own case. This applies to the Tribunals as well.

If a litigant Acting in Person wants to rope in a “Friend” to assist, the court should allow this. After all, it’s the litigant who is taking the “risk”, if any.

Let’s face it. Many people are not happy with lawyers for various reasons.

The law should be amended to allow those who have not been admitted to the High Court to “practise law”, for want of a better term.

It’s up to the people to seek the assistance of such “lawyers”.

We also need constitutional experts and jurists in Malaysia. It was then AG Tommy Thomas who pointed out that there are no jurists in Malaysia.

A jurist, according to the Definition, is a person with expert knowledge of law; someone who analyses and comments on law.

This person is usually a specialist legal scholar—not necessarily with a formal qualification in law or a legal practitioner, although in the United States the term “jurist” may be applied to a judge as well. In the US, not every Ahmad, Ah Chong and Meenachi can be a judge.

If we have jurists in Malaysia, they should be allowed to practice law.

Jurists may need to have a personal deity i.e. a jurist who has moved on. It’s not about freedom of religion but freedom of conscience. God has no religion. All religions are convenient man-made vehicles for organisation, control and exploitation of human beings.

Jesus had God the Father as a personal deity.

Others have Mother Mary as a personal deity or Jesus.

The Holy Spirit in the Holy Bible, the Word of God, is not a deity but universal consciousness or God.

Self-taught mathematician Srinivasa Ramanujan had a personal and family deity. He attributed all his mathematics to the personal and family deity.

Free yourself.

Keep spiritualism (emanicipation of the spirit) and mysticism (exploration for no rhyme or reason but for the sake of exploration) in mind.

I don’t know about yoga. Some people believe in yoga. Yoga, I was told, is not the BS that’s done in America. That’s just simple poses or exercises.

Spiritualism and mysticism are based on the “I don’t know” school of thought. When you say that you don’t know, you will want to know, and you will know.

The Holy Bible, the Word of God, says, “knock and the door will be opened, seek and you shall find, ask and you shall receive”.

The media refers to certain lawyers in Malaysia as constitutional experts.

I beg to differ. I believe that we don’t have constitutional experts in Malaysia.

The proof of the pudding is in the eating.

If we have constitutional experts, there will be novel developments in law for the court to declare them.

Author: fernzthegreat

Joe Fernandez holds a honours degree in management, majoring in economics, and has opted from academia in law to being a jurist. He was trained professionally on the job as a journalist. He's a longtime Borneo watcher, keen on the history and legal aspects of Malaya's presence in Sabah and Sarawak. He teaches the English language privately and has emerged as a subject matter expert in public examination techniques.

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