JUNE 27 — Imagine a society without laws and you can immediately see the physically strongest or the one that is wealthy who will be the “law.” The weak, the meek and the poor will be oppressed.
Without doubt, for any society to function as a peaceful community and to evolve in a civilised manner, there must be some code of behaviour agreed between members of society.
The code of behaviour must be certain and enforceable against members who violate it. Hence, the most obvious function of law is to ensure members of a society can live in a peaceful and orderly manner, and conduct their activities among themselves in a certain predetermined manner.
Life is extremely complex encompassing diverse activities — political, social and economic. In our country, the laws are passed by Parliament. Hence, there is a need for laws to cover various aspects of these diverse activities.
The questions that often arise in these type of discussions are: How much of human behaviour ought to be governed by laws and how much to be left to the individual’s choice and discretion.
Generally, laws, whether of a secular origin or religious, cover areas such as protection of life and property, maintaining certain standards of behaviour, resolving disputes, protecting rights and liberties, and to establish and strengthen values. When we speak of laws, we often also speak of laws that can “ensure justice” to the members of the society.
Our laws are primarily based on the English legal system due to our colonial history. I would say we have a comprehensive and “stable” set of laws covering most aspects of life, if not all. The economy, the government and the individual are able to function according to the rule of law.
When laws are certain, it is possible for the rule of law to become a way of life for the community. This means no one is above the law and everyone, whether individual or government, is subject to the law. Rule of law philosophy provides a sense of justice in terms of equality before the law.
Due to the fact laws control the behaviour of citizens in all aspects of living, laws may also become an agent of change or an instrument of social control.
It is this feature which may make it a weapon in the hands of irresponsible politicians. For example, if the law is used to bring about positive changes in the society through some sort of social engineering, it is laudable.
However, if the laws are used to curb basic civil liberties and freedom of the ordinary citizen for the sole purpose of consolidating political power, then it clearly is an unjust situation.
Thus, it should be clear laws by themselves are not necessarily just. Whether or not the law is just depends on several factors including the content of the law, the manner it is implemented, the consequences thereof and whether or not it is able to achieve “justice.”
For example, our court system functions on the basis that a person is innocent until proven guilty. If there is a reasonable doubt in the prosecution’s case, then the accused person is set free from the charge.
To me, this is an extremely important principle to ensure an innocent person wrongly charged does not end up being punished for a crime he did not commit.
Imagine a legal system where the person charged is assumed to be guilty until he can prove his innocence. To my mind, such a system imposes a heavy burden on an ordinary citizen when he faced a charge by the mighty state which has all the resources at its disposal. There is a clear probability of possible injustice.
A just law may also cause injustice if the implementers of the law do not implement it justly and compassionately. For example, the Penal Code provides for a range of punishments for theft.
It will clearly be unjust if a poor man caught stealing medicine for his sick wife is sentenced to six months imprisonment while someone stealing RM2 million is punished with a year’s imprisonment.
The judge will have to address his mind to the circumstances under which the offence is committed before he can mete out a just sentence.
Since life is evolving with change in circumstances, so does the law. For example, since the advent of the Internet, many businesses, communications and crimes have gone online. The law has adapted itself to cover some of these concerns. New laws have been passed and probably many more of such new challenges.
A good legal system is one which can be tweaked or even changed to adapt to the changing circumstances, keeping in mind the objective which is sought to be achieved.
Laws written in stone are bad laws if the current circumstances outlive their usefulness and yet, for some illogical reason, you still have to maintain them.
Religious laws, for example, are generally unenforceable and are left to the conscience of the respective followers.
The bottom line is that laws must be able to provide justice to the ordinary citizen. In this regard, it is the onerous duty of all responsible citizens to ensure the gap between law and justice does not widen.
* Jahaberdeen is a senior lawyer and founder of Rapera, a movement which encourages thinking and compassionate citizens. He can be reached at [email protected]
** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail Online.
