我不懂女人为什么总爱看戏时，把戏里的爱情情节搬到现实来，还必须发生在她身上，更要命的是，她要你回答如果你是男主角，你会怎么做。这时，你不只不能专心看戏，还要用心思考问题。回答前要揣测女人想听的答案，答案又要中听，但又不作假，还要一发既中，又可断后路防追兵。考验男人的机智，观察力，诚实，可靠等等IQ和EQ素养，莫过此招。答中者王，答错者寇，男人不经此役，不长其智。
拖字诀曾经很管用。就说“剧情紧张，呆会再谈”，然后乘机绞尽脑汁，积极寻找灵感，还可以静观剧情发展，同时观察女人对剧情反映，有时还会柳暗花明又一春。但可恶的科技，把男人的一线生机也剥夺了。自从家里有了Astro Max 后，面对“剧情紧张，呆会再谈”时，老婆只要轻轻一按pause，拖字诀就会无所遁形。
对策（1）：先看报纸，了解剧情后，预先演练可能发问的问题，此为知己知彼也。但我可没那么多闲情，所以此为下策。
对策（2）：看到了可能会引发问题的环节时，按Fast Forward, 此为以其人之道。或，借尿遁，在厕所里呆到"问题剧情”完结。出来后，千万不能问，刚才的剧情发展，否则功亏一簋。此为中策。
对策（3）：万试皆灵 标准答案，“我不会让这件事情发生的”。此为釜底抽薪，贵为上策。
但我与老婆已是“老夫老妻”，甜言蜜语骗女人的招数已懒得使用。有时，政客也不是一无是处，至少，“我不回应假设性问题”在此时显得多有智慧。
Friday, December 21, 2007
老公日记（2）
我和老婆最爱斗嘴。可能我们都是用嘴巴讨饭吃的人，斗起嘴来可说是各有胜负。上一篇写了一些我占老婆便宜的斗嘴史，这次该写写老婆占上风得例子了
我的广东话有福建腔，而老婆的广东话却是字正腔圆。有时我们必须以广东话交流串谋来“搞定”儿子，有出错的地方，老婆便会得理不饶人。有一次，我抱着小皇帝，老婆小声以广东话问他睡了没，我以广东话答 ：“mei fan la. Dui gan seng go HAN YAN gam dai" (意指 ：没睡，眼睛还整棵杏仁那么大). 老婆耳利，马上说 ：“hai HANG YAN，ng hai HAN YAN, lei jiao hai HAN YAN” 意指 ：是杏仁 （HANG YAN) 不是闲人（HAN YAN), 你才是闲人。
又，老婆爱整洁，而我对整洁水平的标准和老婆有一段距离。有一次，我对小皇帝教育道 ：“蟑螂是一种昆虫，他喜欢生活在肮脏的地方，所以你不可以碰蟑螂”，老婆回头对我说 ：“你得和他再说清楚，只说蟑螂喜欢住在肮脏的地方，他会错把你当蟑螂”。
我的广东话有福建腔，而老婆的广东话却是字正腔圆。有时我们必须以广东话交流串谋来“搞定”儿子，有出错的地方，老婆便会得理不饶人。有一次，我抱着小皇帝，老婆小声以广东话问他睡了没，我以广东话答 ：“mei fan la. Dui gan seng go HAN YAN gam dai" (意指 ：没睡，眼睛还整棵杏仁那么大). 老婆耳利，马上说 ：“hai HANG YAN，ng hai HAN YAN, lei jiao hai HAN YAN” 意指 ：是杏仁 （HANG YAN) 不是闲人（HAN YAN), 你才是闲人。
又，老婆爱整洁，而我对整洁水平的标准和老婆有一段距离。有一次，我对小皇帝教育道 ：“蟑螂是一种昆虫，他喜欢生活在肮脏的地方，所以你不可以碰蟑螂”，老婆回头对我说 ：“你得和他再说清楚，只说蟑螂喜欢住在肮脏的地方，他会错把你当蟑螂”。
小皇帝日记（3）
今天想写写小皇帝的花名。爸爸，妈妈，外婆，外公，公公和婆婆各自都给了小皇帝花名。
丑八怪 ：我和老婆最喜欢用这个花名。“丑”字是反义词。身为父母，总会觉得自己的孩子最可爱。可是，总觉得不断称赞自己孩子可爱有点“爱现”。老婆也有一些古怪的理论，说常叫孩子“可爱”，孩子会变丑。所以，我们常称小皇帝“丑八怪”。
大吃公：小皇帝的胃口大得惊人. 平时一大碗成人分得粥可以在15分钟吃光。20个月大的他，晚上喝了8安士的奶，15分钟后又吵喝奶。奶粉钱不知花了多少。好在他一点也不像他老豆，吃了不长肉。每隔一星期带他回家时，总觉得他越来越重，可以支撑抱他的时间越来越短。
大尿公：小皇帝不只食量惊人，“尿量”也同样惊人。而尿片的价钱和尿的价值总是成反比。我常说，白花花的钞票都给他拿来包尿了。
一包米 ：这是小皇帝的舅舅给他取的花名。小皇帝十来公斤的体重对他舅舅来说等于“一包米”。
鸡屁股：这是小皇帝外婆的杰作。小皇帝小时总爱嘟起嘴巴，犹如鸡屁股长在嘴上。
小皇帝最烦人的时候是睡觉时间。老婆要他睡，他偏不睡。我们要闪电战，他就和我们玩持久战。我们有时扮猫来吓他，骗他说猫来咬不睡觉的bb。每一次，老婆扮猫叫，我就得配合，告诉他猫来了。有一次，老婆又扮猫叫，我趁机一箭双雕揶揄老婆说：“aiyo 爸爸看见猫来了，这只母猫好肥好大只，爸爸从来没见过这么大只的猫，好可怕，yang-yang 还不快睡觉”。老婆又不能否认有猫，气得干瞪眼。相信小皇帝也怕肥猫，乖乖闭上眼睛。我真不明白，猫有什么可怕的。
丑八怪 ：我和老婆最喜欢用这个花名。“丑”字是反义词。身为父母，总会觉得自己的孩子最可爱。可是，总觉得不断称赞自己孩子可爱有点“爱现”。老婆也有一些古怪的理论，说常叫孩子“可爱”，孩子会变丑。所以，我们常称小皇帝“丑八怪”。
大吃公：小皇帝的胃口大得惊人. 平时一大碗成人分得粥可以在15分钟吃光。20个月大的他，晚上喝了8安士的奶，15分钟后又吵喝奶。奶粉钱不知花了多少。好在他一点也不像他老豆，吃了不长肉。每隔一星期带他回家时，总觉得他越来越重，可以支撑抱他的时间越来越短。
大尿公：小皇帝不只食量惊人，“尿量”也同样惊人。而尿片的价钱和尿的价值总是成反比。我常说，白花花的钞票都给他拿来包尿了。
一包米 ：这是小皇帝的舅舅给他取的花名。小皇帝十来公斤的体重对他舅舅来说等于“一包米”。
鸡屁股：这是小皇帝外婆的杰作。小皇帝小时总爱嘟起嘴巴，犹如鸡屁股长在嘴上。
小皇帝最烦人的时候是睡觉时间。老婆要他睡，他偏不睡。我们要闪电战，他就和我们玩持久战。我们有时扮猫来吓他，骗他说猫来咬不睡觉的bb。每一次，老婆扮猫叫，我就得配合，告诉他猫来了。有一次，老婆又扮猫叫，我趁机一箭双雕揶揄老婆说：“aiyo 爸爸看见猫来了，这只母猫好肥好大只，爸爸从来没见过这么大只的猫，好可怕，yang-yang 还不快睡觉”。老婆又不能否认有猫，气得干瞪眼。相信小皇帝也怕肥猫，乖乖闭上眼睛。我真不明白，猫有什么可怕的。
Monday, December 17, 2007
A Laywer's Diary (2)
Justice Richard Malanjum CJ of Sabah & Sarawak in PP v Kok Wah Kuan pronounced the function and role of constitution, courts and law (which many might have forgotten or choose to forget) so succintly that any additional words by me would be repugnant. I therefore quote in verbatim as my reminder :
"....[37] At any rate I am unable to accede to the proposition that with the amendment of art. 121(1) of the Federal Constitution (the amendment) the Courts in Malaysia can only function in accordance with what have been assigned to them by federal laws. Accepting such proposition is contrary to the democratic system of government wherein the courts form the third branch of the government and they function to ensure that there is 'check and balance' in the system including the crucial duty to dispense justice according to law for those who come before them.
[38] The amendment which states that "the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law" should by no means be read to mean that the doctrines of separation of powers and independence of the Judiciary are now no more the basic features of our Federal Constitution. I do not think that as a result of the amendment our courts have now become servile agents of a federal Act of Parliament and that the courts are now only to perform mechanically any command or bidding of a federal law.
[39] It must be remembered that the courts, especially the Superior Courts of this country, are a separate and independent pillar of the Federal Constitution and not mere agents of the federal legislature. In the performance of their function they perform a myriad of roles and interpret and enforce a myriad of laws. Article 121(1) is not, and cannot be, the whole and sole repository of the judicial role in this country for the following reasons:
(i) The amendment seeks to limit the jurisdiction and powers of the High Courts and inferior courts to whatever "may be conferred by or under federal law". The words "federal law" are defined in art. 160(2) as follows:
Federal law means:
(a) any existing law relating to a matter with respect to which Parliament has power to make laws, being a law continued in operation under Part XIII; and
(b) any Act of Parliament;
(ii) The courts cannot obviously be confined to "federal law". Their role is to be servants of the law as a whole. Law as a whole in this country is defined in art. 160(2) to include "written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof". Further, "written law" is defined in art. 160(2) to include "this Constitution and the Constitution of any State". It is obvious, therefore, despite the amendment, the courts have to remain involved in the interpretation and enforcement of all laws that operate in this country, including the Federal Constitution, State Constitutions and any other source of law recognized by our legal system. The jurisdiction and powers of the courts cannot be confined to federal law.
(iii) Moreover, the Federal Constitution is superior to federal law. The amendment cannot be said to have taken away the powers of the courts to examine issues of constitutionality. In my view it is not legally possible in a country with a supreme Constitution and with provision for judicial review to prevent the courts from examining constitutional questions. Along with arts. 4(1), 162(6), 128(1) and 128(2), there is the judicial oath in the Sixth Schedule "to preserve, protect and defend (the) Constitution".
(iv) With respect I do not think the amendment should be read to destroy the courts' common law powers. In art. 160(2) the term "law" includes "common law". This means that, despite the amendment, the common law powers of the courts are intact. (See: Ngan Tuck Seng v. Ngan Yin Groundnut Factory Sdn Bhd [1999] 3 CLJ 26). The inherent powers are a separate and distinct source of jurisdiction. They are independent of any enabling statute passed by the legislature. On Malaysia Day when the High Courts came into existence by virtue of art. 121, "they came invested with a reserve fund of powers necessary to fulfill their function as Superior Courts of Malaysia". Similar sentiments were expressed in R Rama Chandran v. Industrial Court of Malaysia & Anor [1997] 1 CLJ 147.
(v) The amendment in my view cannot prevent the courts from interpreting the law creatively. It is now universally recognized that the role of a judge is not simply to discover what is already existing. The formal law is so full of ambiguities, gaps and conflicts that often a judge has to reach out beyond formal rules to seek a solution to the problem at hand. In a novel situation a judge has to reach out where the light of 'judicial precedent fades and flicker and extract from there some raw materials with which to fashion a signpost to guide the law'. When rules run out, as they often do, a judge has to rely on principles, doctrines and standards to assist in the decision. When the declared law leads to unjust result or raises issues of public policy or public interest, judges would try to find ways of adding moral colours or public policy so as to complete the picture and do what is just in the circumstances.
(vi) Statutes enacted in one age have to be applied in a time frame of problems of another age. A present time-frame interpretation to a past time framed statute invariably involves a judge having to consider the circumstances of the past to the present. He has to cause the statute to 'leapfrog' decades or centuries in order to apply it to the necessities of the times.
(vii) Further, in interpreting constitutional provisions, a judge cannot afford to be too literal. He is justified in giving effect to what is implicit in the basic law and to crystallize what is inherent. His task is creative and not passive. This is necessary to enable the constitutional provisions to be the guardian of people's rights and the source of their freedom. (See: Dewan Undangan Negeri Kelantan & Anor. v. Nordin bin Salleh & Anor [1992] 1 MLJ 697; Mamat bin Daud & Ors v Government of Malaysia & Anor [1988] 1 CLJ 11; [1988] 1 CLJ (Rep) 197).
(viii) Though there is much truth in the traditionalist assertion that the primary function of the courts is to faithfully interpret and apply laws framed by the elected legislatures, there are, nevertheless, a host of circumstances in which the role of a judge is not just to deliver what is already there. The role is constitutive and creative and goes far beyond a mechanical interpretation of pre-existing law. It extends to direct or indirect law making in the following ways:
1. Formulating original precedents
Life is larger than the law and there is no dearth of novel situations for which there is no enacted rule on point. In such situations a judge relies on the customs and traditions of the land and on standards, doctrines and principles of justice that are embedded in the life of the community to lay down an "original precedent" to assist the court. Admittedly, this fashioning of a new precedent is an infrequent occurrence but its impact on legal growth is considerable;
2. Overruling earlier precedents
Judicial creativity is fully in play when a previous precedent is overruled and thereby denied the authority of law. The overruling may be retrospective or prospective. In either case a new principle is contributed to the legal system and a new direction is forged;
3. Constitutional review
Under arts. 4(1) and 128 of the Federal Constitution, the Superior Courts of this country have the power to review the validity of legislative and executive actions by reference to norms of the basic law. If a legislative measure is found by the court to be unconstitutional, the court has a number of choices. It may condemn the entire statute as illegal or it may apply the doctrine of severability and invalidate only the sections that are unconstitutional and leave the rest of the statute intact. The court may declare the statute null and void ab-initio or only from the date of the ruling. For instance in Dato' Yap Peng v. PP [1987] 2 MLJ 31 the Supreme Court invalidated s. 418A of the Criminal Procedure Code prospectively.
Questions of constitutionality are fraught with political and policy considerations and decisions thereon can influence the course of legal and political development. For example in Faridah Begum v. Sultan Ahmad Shah [1996] 2 CLJ 159 the majority held that the 1993 constitutional amendment removing the immunities of the Sultans cannot apply to suits brought by foreigners.
Article 162(6) of the Federal Constitution allows judges to modify pre-Merdeka laws in order to make such laws conform to the Constitution. Modification is without doubt a legislative task.
4. Statutory interpretation
In interpreting pre-existing law a judge is not performing a mere robotic function. The interpretive task is, by its very nature, so creative that it is indistinguishable from law-making. "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." (per the American jurist Oliver Wendell Holmes). This is specially so in constitutional law. Even if it is accepted that a judge is bound by the intention of the legislature, it must be noted that such an intention is not always clearly defined. The formal law is so full of ambiguities, gaps and conflicts that often a judge has to reach out beyond the statute to seek a solution to the problem at hand. (See: Chiu Wing Wa & Ors v. Ong Beng Cheng [1994] 1 CLJ 313). A judge may scrutinise preambles, headings and extraneous materials like explanatory statements that accompany Bills and parliamentary debates to help unravel the meaning of statutory formulae. A judge may lean on the interpretation clauses of a statute or on the Interpretation Act 1948/1967 to decipher the intention of the legislature. Or he may fall back on a wealth of rules of statutory construction to aid his task. So numerous and varied are these rules that judicial discretion to rely on one rule or another cannot be predicted. Sometimes a judge's attention is drawn to foreign legislation and related precedents. He may declare the overseas statute to be in pari materia with local legislation and, therefore, relevant to the case. Alternatively, he may pronounce the local law to be sui generis and therefore to be viewed in the local context without aid of foreign decisions.
When the enacted law leads to undesirable or unjust results, a judge may be persuaded to add moral or public policy shades to the issue in order to do justice.
One could also note, for instance, the "public interest" interpretation of art. 5(3) of the Federal Constitution in Ooi Ah Phua v. Officer-In-Charge Criminal Investigation, Kedah/Perlis [1975] 1 LNS 117 in which the court held that the constitutional right to legal representation can be postponed pending police investigation. In Teoh Eng Huat v. Kadhi Pasir Mas [1990] 2 CLJ 11; [1990] 1 CLJ (Rep) 277 the "wider interest of the nation" prevailed over a minor's right to religion guaranteed by art. 11. In Hajjah Halimatussaadiah v. Public Services Commission [1992] 1 CLJ 413; [1992] 2 CLJ (Rep) 467 the court subjected a public servant's claim of a religious right to wear purdah at the workplace to the need to maintain "discipline in the service".
A judge is not required to view a statute in isolation. He is free to view the entire spectrum of the law in its entirety; to read one statute in the light of related statutes and relevant precedents; to understand law in the background of a wealth of presumptions, principles, doctrines and standards that operate in a democratic society. (See: Kesultanan Pahang v. Sathask Realty Sdn. Bhd. [1998] 2 CLJ 559). He is justified in giving effect to what is implicit in the legal system and to crystallize what is inherent. Such a holistic approach to legal practice is justified because "law" in art. 160(2) is defined broadly to include written law, common law and custom and usage having the force of law.
5. Operation of doctrine of binding precedent
The doctrine of binding judicial precedent exists to promote the principle of justice that like cases should be decided alike. It also seeks to ensure certainty, stability and predictability in the judicial process. There can be no denying that the existence of this doctrine imposes some rigidity in the law and limits judicial choices. But one must not ignore the fact that some flexibility and maneuverability still exist.
Though a superior court is generally reluctant to disregard its own precedents, it does have the power "to refuse to follow" its earlier decisions or to cite them with disapproval. Our Federal Court has, on some occasions, overruled itself. High Court judges occasionally refuse to follow other High Court decisions. An inferior court can maneuver around a binding decision through a host of indirect techniques.
6. Application of doctrine of ultra vires
Whether an agency has acted ultra vires is a complex question of law that permits judicial creativity.
Some statutes declare that discretion is absolute or that a decision is final and conclusive. Some statutory powers are conferred in broad and subjective terms. To statutory formulae of this sort, contrasting judicial responses are possible. The court may interpret them literally and give judicial sanction to absolute powers.
Alternatively the court may read into the enabling law implied limits and constitutional presumptions of a rule of law society. This will restrict the scope of otherwise unlimited powers. (See: R v. Lord Chancellor, Ex p Witham [1998] QB 575). Subjective powers may be viewed objectively. Purposive interpretation may be preferred over literal interpretation. (See: Public Prosecutor v. Sihabduin bin Haji Salleh & Anor [1981] CLJ 39; [1981] CLJ (Rep) 82).
When procedural violations are alleged, a decisive but discretionary issue is whether the procedure was mandatory or directory. Violation of a mandatory procedure results in nullity. Violation of a directory requirement is curable.
7. Import of rules of natural justice
Rules of natural justice are non-statutory standards of procedural fairness. They are not nicely cut up and dried and vary from situation to situation. Judges have wide discretion in determining when they apply and to what extent.
[40] Hence, it is reasonable to emphasize that the amendment should not be construed or viewed as having emasculated the courts in this country to mere automaton and servile agents of a federal Act of Parliament...."
"....[37] At any rate I am unable to accede to the proposition that with the amendment of art. 121(1) of the Federal Constitution (the amendment) the Courts in Malaysia can only function in accordance with what have been assigned to them by federal laws. Accepting such proposition is contrary to the democratic system of government wherein the courts form the third branch of the government and they function to ensure that there is 'check and balance' in the system including the crucial duty to dispense justice according to law for those who come before them.
[38] The amendment which states that "the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law" should by no means be read to mean that the doctrines of separation of powers and independence of the Judiciary are now no more the basic features of our Federal Constitution. I do not think that as a result of the amendment our courts have now become servile agents of a federal Act of Parliament and that the courts are now only to perform mechanically any command or bidding of a federal law.
[39] It must be remembered that the courts, especially the Superior Courts of this country, are a separate and independent pillar of the Federal Constitution and not mere agents of the federal legislature. In the performance of their function they perform a myriad of roles and interpret and enforce a myriad of laws. Article 121(1) is not, and cannot be, the whole and sole repository of the judicial role in this country for the following reasons:
(i) The amendment seeks to limit the jurisdiction and powers of the High Courts and inferior courts to whatever "may be conferred by or under federal law". The words "federal law" are defined in art. 160(2) as follows:
Federal law means:
(a) any existing law relating to a matter with respect to which Parliament has power to make laws, being a law continued in operation under Part XIII; and
(b) any Act of Parliament;
(ii) The courts cannot obviously be confined to "federal law". Their role is to be servants of the law as a whole. Law as a whole in this country is defined in art. 160(2) to include "written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof". Further, "written law" is defined in art. 160(2) to include "this Constitution and the Constitution of any State". It is obvious, therefore, despite the amendment, the courts have to remain involved in the interpretation and enforcement of all laws that operate in this country, including the Federal Constitution, State Constitutions and any other source of law recognized by our legal system. The jurisdiction and powers of the courts cannot be confined to federal law.
(iii) Moreover, the Federal Constitution is superior to federal law. The amendment cannot be said to have taken away the powers of the courts to examine issues of constitutionality. In my view it is not legally possible in a country with a supreme Constitution and with provision for judicial review to prevent the courts from examining constitutional questions. Along with arts. 4(1), 162(6), 128(1) and 128(2), there is the judicial oath in the Sixth Schedule "to preserve, protect and defend (the) Constitution".
(iv) With respect I do not think the amendment should be read to destroy the courts' common law powers. In art. 160(2) the term "law" includes "common law". This means that, despite the amendment, the common law powers of the courts are intact. (See: Ngan Tuck Seng v. Ngan Yin Groundnut Factory Sdn Bhd [1999] 3 CLJ 26). The inherent powers are a separate and distinct source of jurisdiction. They are independent of any enabling statute passed by the legislature. On Malaysia Day when the High Courts came into existence by virtue of art. 121, "they came invested with a reserve fund of powers necessary to fulfill their function as Superior Courts of Malaysia". Similar sentiments were expressed in R Rama Chandran v. Industrial Court of Malaysia & Anor [1997] 1 CLJ 147.
(v) The amendment in my view cannot prevent the courts from interpreting the law creatively. It is now universally recognized that the role of a judge is not simply to discover what is already existing. The formal law is so full of ambiguities, gaps and conflicts that often a judge has to reach out beyond formal rules to seek a solution to the problem at hand. In a novel situation a judge has to reach out where the light of 'judicial precedent fades and flicker and extract from there some raw materials with which to fashion a signpost to guide the law'. When rules run out, as they often do, a judge has to rely on principles, doctrines and standards to assist in the decision. When the declared law leads to unjust result or raises issues of public policy or public interest, judges would try to find ways of adding moral colours or public policy so as to complete the picture and do what is just in the circumstances.
(vi) Statutes enacted in one age have to be applied in a time frame of problems of another age. A present time-frame interpretation to a past time framed statute invariably involves a judge having to consider the circumstances of the past to the present. He has to cause the statute to 'leapfrog' decades or centuries in order to apply it to the necessities of the times.
(vii) Further, in interpreting constitutional provisions, a judge cannot afford to be too literal. He is justified in giving effect to what is implicit in the basic law and to crystallize what is inherent. His task is creative and not passive. This is necessary to enable the constitutional provisions to be the guardian of people's rights and the source of their freedom. (See: Dewan Undangan Negeri Kelantan & Anor. v. Nordin bin Salleh & Anor [1992] 1 MLJ 697; Mamat bin Daud & Ors v Government of Malaysia & Anor [1988] 1 CLJ 11; [1988] 1 CLJ (Rep) 197).
(viii) Though there is much truth in the traditionalist assertion that the primary function of the courts is to faithfully interpret and apply laws framed by the elected legislatures, there are, nevertheless, a host of circumstances in which the role of a judge is not just to deliver what is already there. The role is constitutive and creative and goes far beyond a mechanical interpretation of pre-existing law. It extends to direct or indirect law making in the following ways:
1. Formulating original precedents
Life is larger than the law and there is no dearth of novel situations for which there is no enacted rule on point. In such situations a judge relies on the customs and traditions of the land and on standards, doctrines and principles of justice that are embedded in the life of the community to lay down an "original precedent" to assist the court. Admittedly, this fashioning of a new precedent is an infrequent occurrence but its impact on legal growth is considerable;
2. Overruling earlier precedents
Judicial creativity is fully in play when a previous precedent is overruled and thereby denied the authority of law. The overruling may be retrospective or prospective. In either case a new principle is contributed to the legal system and a new direction is forged;
3. Constitutional review
Under arts. 4(1) and 128 of the Federal Constitution, the Superior Courts of this country have the power to review the validity of legislative and executive actions by reference to norms of the basic law. If a legislative measure is found by the court to be unconstitutional, the court has a number of choices. It may condemn the entire statute as illegal or it may apply the doctrine of severability and invalidate only the sections that are unconstitutional and leave the rest of the statute intact. The court may declare the statute null and void ab-initio or only from the date of the ruling. For instance in Dato' Yap Peng v. PP [1987] 2 MLJ 31 the Supreme Court invalidated s. 418A of the Criminal Procedure Code prospectively.
Questions of constitutionality are fraught with political and policy considerations and decisions thereon can influence the course of legal and political development. For example in Faridah Begum v. Sultan Ahmad Shah [1996] 2 CLJ 159 the majority held that the 1993 constitutional amendment removing the immunities of the Sultans cannot apply to suits brought by foreigners.
Article 162(6) of the Federal Constitution allows judges to modify pre-Merdeka laws in order to make such laws conform to the Constitution. Modification is without doubt a legislative task.
4. Statutory interpretation
In interpreting pre-existing law a judge is not performing a mere robotic function. The interpretive task is, by its very nature, so creative that it is indistinguishable from law-making. "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." (per the American jurist Oliver Wendell Holmes). This is specially so in constitutional law. Even if it is accepted that a judge is bound by the intention of the legislature, it must be noted that such an intention is not always clearly defined. The formal law is so full of ambiguities, gaps and conflicts that often a judge has to reach out beyond the statute to seek a solution to the problem at hand. (See: Chiu Wing Wa & Ors v. Ong Beng Cheng [1994] 1 CLJ 313). A judge may scrutinise preambles, headings and extraneous materials like explanatory statements that accompany Bills and parliamentary debates to help unravel the meaning of statutory formulae. A judge may lean on the interpretation clauses of a statute or on the Interpretation Act 1948/1967 to decipher the intention of the legislature. Or he may fall back on a wealth of rules of statutory construction to aid his task. So numerous and varied are these rules that judicial discretion to rely on one rule or another cannot be predicted. Sometimes a judge's attention is drawn to foreign legislation and related precedents. He may declare the overseas statute to be in pari materia with local legislation and, therefore, relevant to the case. Alternatively, he may pronounce the local law to be sui generis and therefore to be viewed in the local context without aid of foreign decisions.
When the enacted law leads to undesirable or unjust results, a judge may be persuaded to add moral or public policy shades to the issue in order to do justice.
One could also note, for instance, the "public interest" interpretation of art. 5(3) of the Federal Constitution in Ooi Ah Phua v. Officer-In-Charge Criminal Investigation, Kedah/Perlis [1975] 1 LNS 117 in which the court held that the constitutional right to legal representation can be postponed pending police investigation. In Teoh Eng Huat v. Kadhi Pasir Mas [1990] 2 CLJ 11; [1990] 1 CLJ (Rep) 277 the "wider interest of the nation" prevailed over a minor's right to religion guaranteed by art. 11. In Hajjah Halimatussaadiah v. Public Services Commission [1992] 1 CLJ 413; [1992] 2 CLJ (Rep) 467 the court subjected a public servant's claim of a religious right to wear purdah at the workplace to the need to maintain "discipline in the service".
A judge is not required to view a statute in isolation. He is free to view the entire spectrum of the law in its entirety; to read one statute in the light of related statutes and relevant precedents; to understand law in the background of a wealth of presumptions, principles, doctrines and standards that operate in a democratic society. (See: Kesultanan Pahang v. Sathask Realty Sdn. Bhd. [1998] 2 CLJ 559). He is justified in giving effect to what is implicit in the legal system and to crystallize what is inherent. Such a holistic approach to legal practice is justified because "law" in art. 160(2) is defined broadly to include written law, common law and custom and usage having the force of law.
5. Operation of doctrine of binding precedent
The doctrine of binding judicial precedent exists to promote the principle of justice that like cases should be decided alike. It also seeks to ensure certainty, stability and predictability in the judicial process. There can be no denying that the existence of this doctrine imposes some rigidity in the law and limits judicial choices. But one must not ignore the fact that some flexibility and maneuverability still exist.
Though a superior court is generally reluctant to disregard its own precedents, it does have the power "to refuse to follow" its earlier decisions or to cite them with disapproval. Our Federal Court has, on some occasions, overruled itself. High Court judges occasionally refuse to follow other High Court decisions. An inferior court can maneuver around a binding decision through a host of indirect techniques.
6. Application of doctrine of ultra vires
Whether an agency has acted ultra vires is a complex question of law that permits judicial creativity.
Some statutes declare that discretion is absolute or that a decision is final and conclusive. Some statutory powers are conferred in broad and subjective terms. To statutory formulae of this sort, contrasting judicial responses are possible. The court may interpret them literally and give judicial sanction to absolute powers.
Alternatively the court may read into the enabling law implied limits and constitutional presumptions of a rule of law society. This will restrict the scope of otherwise unlimited powers. (See: R v. Lord Chancellor, Ex p Witham [1998] QB 575). Subjective powers may be viewed objectively. Purposive interpretation may be preferred over literal interpretation. (See: Public Prosecutor v. Sihabduin bin Haji Salleh & Anor [1981] CLJ 39; [1981] CLJ (Rep) 82).
When procedural violations are alleged, a decisive but discretionary issue is whether the procedure was mandatory or directory. Violation of a mandatory procedure results in nullity. Violation of a directory requirement is curable.
7. Import of rules of natural justice
Rules of natural justice are non-statutory standards of procedural fairness. They are not nicely cut up and dried and vary from situation to situation. Judges have wide discretion in determining when they apply and to what extent.
[40] Hence, it is reasonable to emphasize that the amendment should not be construed or viewed as having emasculated the courts in this country to mere automaton and servile agents of a federal Act of Parliament...."
Monday, December 10, 2007
A Lawyer's Diary (1)
Edmond is merely my acquaintance. Though we only greet each other by just raising our hands when we meet each other in court, I find so strongly against his arrest that I was prepared to set aside my works and attended court to lend my support . So are other lawyers, NGOs, and political figures.
I have not met the other detainees, yet I compliment their bravery, determination and commitment towards building a better nation, even at the expense of their personal liberty.
Their efforts always make me think : I am not prepared to sacrify to the extent they do. Yet the very minimal an individual like me should do is to lend unreserved support to a course that is dear to one's heart and fullfil one's conscience. This country needs no more civil activist leaders, it needs followers. It is the intergration of activist leaders and its followers that has the force to transform their aspiration to reality.
I saw other lawyers, plenty of them, all stayed at the foyer of the 2nd lagest court of justice in the world, awaiting to be notified as to which court they ought to storm into. The irony I felt was, within the vacinity of this 2nd lagest court of justice, a great injustice was about to perpetriate. An unbelieveable persecution through unfettered unchecked power of prosecution was to happened. After reading the charge, the AG was opposing the detainees' bail applications. After the Judge granted the bail, and the counsel proceeded to argue on the terms to be attached to the bail. The AG requested the Judge to impose an unprecedented (so he admitted that he had no precedent in support) that the accused do obey an order of Public Officer. I am glad the judge saw the nonsensical in this proposition and did not allow it. Imagine if it was so imposed, the detainee would no longer be able to exercise : (a) his constitutional rights to attend peaceful gathering; (b) his statutory duties as counsel members to protect Bar's property from unlawful invasion. A signal is therefore sent : Mr. Edmond and other detainees better be good boys (and girls) during this period (until they are acquitted), for otherwise, I would not be surprised if the Government would apply to revoke the bail, on account that they have repeatedly committing the charged offence. Even if this is not done, what would happen if these accused attend another gathering? they would be arrested, and charged again, and this time, AG has stronger reason to oppose bail. These activist leaders would be lock-up, and kept out of reach of rakyat.
Consitutional rights are doomed. Tyrant smiling his way. How can I convince myself to believe the good always prevail?
I told an Indian friend of mine, our parents' generation has condoned crime committed to civil liberty, and resulted the birth of tyrant. It is the do of people. Now is the time for our generation to undo a wrong, so that my son's generation would be proud to declare that his daddy's generation has done the needful to secure a save, secure and free nation for them.
I have not met the other detainees, yet I compliment their bravery, determination and commitment towards building a better nation, even at the expense of their personal liberty.
Their efforts always make me think : I am not prepared to sacrify to the extent they do. Yet the very minimal an individual like me should do is to lend unreserved support to a course that is dear to one's heart and fullfil one's conscience. This country needs no more civil activist leaders, it needs followers. It is the intergration of activist leaders and its followers that has the force to transform their aspiration to reality.
I saw other lawyers, plenty of them, all stayed at the foyer of the 2nd lagest court of justice in the world, awaiting to be notified as to which court they ought to storm into. The irony I felt was, within the vacinity of this 2nd lagest court of justice, a great injustice was about to perpetriate. An unbelieveable persecution through unfettered unchecked power of prosecution was to happened. After reading the charge, the AG was opposing the detainees' bail applications. After the Judge granted the bail, and the counsel proceeded to argue on the terms to be attached to the bail. The AG requested the Judge to impose an unprecedented (so he admitted that he had no precedent in support) that the accused do obey an order of Public Officer. I am glad the judge saw the nonsensical in this proposition and did not allow it. Imagine if it was so imposed, the detainee would no longer be able to exercise : (a) his constitutional rights to attend peaceful gathering; (b) his statutory duties as counsel members to protect Bar's property from unlawful invasion. A signal is therefore sent : Mr. Edmond and other detainees better be good boys (and girls) during this period (until they are acquitted), for otherwise, I would not be surprised if the Government would apply to revoke the bail, on account that they have repeatedly committing the charged offence. Even if this is not done, what would happen if these accused attend another gathering? they would be arrested, and charged again, and this time, AG has stronger reason to oppose bail. These activist leaders would be lock-up, and kept out of reach of rakyat.
Consitutional rights are doomed. Tyrant smiling his way. How can I convince myself to believe the good always prevail?
I told an Indian friend of mine, our parents' generation has condoned crime committed to civil liberty, and resulted the birth of tyrant. It is the do of people. Now is the time for our generation to undo a wrong, so that my son's generation would be proud to declare that his daddy's generation has done the needful to secure a save, secure and free nation for them.
Tuesday, December 4, 2007
小皇帝日记（2）
那天在车里，小皇帝如往常，总爱跳上跳下。我不让他跳。结果，他龙颜大怒，挥手打了我。我也不是好惹的, 打了他手阪，装很生气的样子，骂了他一顿，然后不理睬他。相信他也知道我很生气，乖乖的坐着不动了。偶尔还会偷偷望望我的样子。当然，做戏要做全套，我依然不理睬他。下车后，我对他说 ：“爸爸生气，不抱你”，然后以广东话 （相信他听不懂），和老婆串通，由老婆抱他，对他说：“你看，爸爸很生气，因为你打他, 快快kiss kiss 爸爸，say sorry”。小皇帝似乎很懂事，快快的kiss了我。我便装“宽宏大量”对他笑笑，告诫他以后不可以。下来几天，他在怎么发脾气，都不会打我了。
老婆说 ：“我们好坏，做戏骗自己的儿子”。
老婆说 ：“我们好坏，做戏骗自己的儿子”。
老公日记(1)
自从有了小皇帝后, 老婆与我的话题总是围绕在小皇帝. 比如 : 小皇帝今天学了什么, 作了什么, 吃了什么, 有没有大便, 等等. 有时甚至学小皇帝的语言. 如 : "黑黑", "oi-oi" (睡觉）。 小皇帝爱用脚尖走路，我们偶尔也学学"殿下"的“龙步”。甚至连长大后该上那间幼稚园, 小学, 中学, 都有了概念. 我们甚至讨论过可不可以娶回教徒.
自从小皇帝加入我们的生活后，大小事务都必须以他为中心。旅行时的时间表必须符合殿下的睡觉时间。虽是如此，我俩也乐在其中。无论如何，我们还是决定，今年年尾，我们到曼谷度个只有30岁以上才可参与的度假. 小皇帝, 乖乖呆在姨婆家吧.
有一次, 老婆问我, 她可不可以把重心都放在我和小皇帝身上, 我断然说不可以. 老婆吃惊的看着我, 等我解释. 我说 : "当然不可以, 你体重会压到我们". 又有一次, 老婆腰酸, 埋怨道 : "我的腰会不会断掉?" 我说 : "放心吧, 这么粗, 断不了" . 老婆常埋怨我少送花, 我的解释是 : "你们女人最怕变态男人献宝, 这花也是植物的生殖器, 你们又趋之若鹜".
所以, 老婆常说, 她不懂为什么会嫁给一个完全不懂浪漫的人, 还为我生了个丑八怪. 我回答道 : " 浪漫是花花公子骗女人的本事, 我不是花花公子, 所以不会浪漫" . 懂逻辑的人, 我这话有逻辑漏洞吗?
自从小皇帝加入我们的生活后，大小事务都必须以他为中心。旅行时的时间表必须符合殿下的睡觉时间。虽是如此，我俩也乐在其中。无论如何，我们还是决定，今年年尾，我们到曼谷度个只有30岁以上才可参与的度假. 小皇帝, 乖乖呆在姨婆家吧.
有一次, 老婆问我, 她可不可以把重心都放在我和小皇帝身上, 我断然说不可以. 老婆吃惊的看着我, 等我解释. 我说 : "当然不可以, 你体重会压到我们". 又有一次, 老婆腰酸, 埋怨道 : "我的腰会不会断掉?" 我说 : "放心吧, 这么粗, 断不了" . 老婆常埋怨我少送花, 我的解释是 : "你们女人最怕变态男人献宝, 这花也是植物的生殖器, 你们又趋之若鹜".
所以, 老婆常说, 她不懂为什么会嫁给一个完全不懂浪漫的人, 还为我生了个丑八怪. 我回答道 : " 浪漫是花花公子骗女人的本事, 我不是花花公子, 所以不会浪漫" . 懂逻辑的人, 我这话有逻辑漏洞吗?
Friday, November 30, 2007
小皇帝日记（1）
.JPG)
听老婆说，最近，小皇帝总学她姨婆说话， 如 ：“小靖扫地”，“Mommy 那里" ，“Mommy做工”等等。
小皇帝最喜欢的游戏是：爸爸躲在沙发后喊他的名字，然后突然跳出来，对着他说："ooi..."。他会笑道见牙不见眼。他称这游戏着 “yang-yang ooi" 。
老婆对小皇帝的“时间表”管得分外严格。晚上十点一定要睡觉。贪玩时，他会有多多借口。如 ：“nien nien”（奶），“ng-ng”(大便)，“规”（要我们读“弟子规”）， “ah to” (看电视)。有时，同样的借口可以用两三次。上个礼拜，我们一家人到普吉岛去，在还没有睡觉前，给了一大瓶的奶。喝了奶但又不想睡觉的小皇帝，不出十分钟，又说“nien nien”. 我们大声对他说 ：“才刚喝奶，你骗人”，发现理由牵强时，他顾左右而言他，喊着要玩“灯”。
Subscribe to:
Posts (Atom)
.JPG)