OCTOBER 7 — Law is a discipline, wrote Kathleen M. Sullivan, then Professor of Law and Dean of Stanford Law School (1999 to 2004) — the first woman to head any of Stanford’s seven schools and the first woman Dean at a top three law school in the US.
A discipline represents a technique, a method of analysis, a way of working, which makes law distinctive. It gives normative force to interpretation and analysis, using “a set of interpretive techniques of problem solving that disaggregate and order the messy jumble of facts through which conflict presents itself”.
The above was written in 2002.
Now, I am convinced of the use of “interpretive techniques of problem solving” by High Court Judge Raja Azlan Shah (as he then was) in the case of Reddy v Employees Provident Fund Board [1967] 2 MLJ 82 which I shared in “Nothing grotesque about doing justice and upholding rule of law”.
That judgment was thirty-five years before Sullivan’s writing on law as a discipline — even more years ahead than our legislature that inserted Section 17A into the Interpretation Acts 1948 and 1967 in 1997 to provide that regards to the purpose of a statute must be had to interpret the provisions in the statute.
That judgment was delivered at a young age of 39 — young for a superior court judge.
His Royal Highness was truly an outstanding and exemplary judge and jurist.
So, if you are to solve a legal problem, do it the Raja Azlan Shah’s way — apologies for calling it as such. Use interpretive techniques that disaggregate and order the messy jumble of facts.
Like solving the legal problem in Negeri Sembilan.
Let’s start with the Interpretation Acts 1948 and 1967 (Consolidated and Revised 1989) (Act 388), as did His Royal Highness.
Section 3 of the Act defines “subsidiary legislation” as any proclamation, rule, regulation, order, notification, by-law or other instrument made under any Act, Enactment, Ordinance or other lawful authority and having legislative effect.
That makes a proclamation subsidiary legislation.
When does subsidiary legislation commence?
Section 86(1) of the Act says subsidiary legislation “shall, unless it be otherwise expressly provided in any Act of Parliament, Ordinance, be published in the Gazette and, unless it be otherwise provided in such subsidiary legislation, shall take effect and come into operation as law on the date of such publication”.
The above is clear authority that a proclamation must be gazetted.
Section 82(2) then says any subsidiary legislation may be made to operate retrospectively.
But the subsidiary legislation must first “take effect and come into operation” by publication in the Gazette. The date of such publication is the date the subsidiary legislation becomes law.
The subsidiary legislation may then be made to operate retrospectively.
Only then.
It is not a chicken and egg situation.
So, when a so-called proclamation is not published “as soon as possible” while intervening events have set in, one may say that the proclamation has lapsed.
Or, in the words of Negeri Sembilan Menteri Besar Datuk Ismail Lasim, overtaken by events.
* Editor’s note: This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
