Contributed by the National Young Lawyers Committee
“Use the law to uphold justice and embrace compassion for all”
Fadiah was born in Kedah and graduated from the International Islamic University, Malaysia in 2006. She completed her pupilage in Alor Star on 23 March 2007. Before she gets caught up in the scurry of practice, we asked her to infect us with her enthusiasm for justice, and to relate her semblance of idealism with us.
We understand you have quite an active blog at http://fadaf.blogspot.com/. Blogs are the new “tools” in town?
Yes, I have quite an active blog. I believe that in running a blog, I have the opportunity to share my thoughts and useful information with other people who are willing to read what I have to say about certain issues or ideas. The very idea of writing a blog is not to impose my views on anyone, rather to offer a platform for any feedback and to open constructive discussions.
Can you tell us more about this, and the motivation for running the blog?
I started my blog when I was in my 3rd year with some technical help from a friend. When I was on campus, I didn’t really get the chance to be actively involved with activities that were within my scope of interests due to time constraints and lack of relevant platforms. This was quite upsetting as I realised that I could not stand just sitting around, living in the basic routine of student life without doing anything to serve the public in general. That was when I decided to have a blog and started writing my thoughts and sharing information with my friends and other people out there. I was never a good writer, but the urge that I had to spread words outweighed this fact. And I’m grateful that the feedback that I’ve been getting from the readers show that people still care. And this is a good thing.
What was your favourite subject at law school?
Jurisprudence was and has always been my favourite subject.
Let’s discuss jurisprudence then.
It is important that in starting a jurisprudential discussion to quote two eminent Greek jurists whose thoughts represented the impetus for social and individual life – Plato and Aristotle. Plato’s basic teaching quoting Curzon is as follows: “we deny that laws are true laws unless they are enacted in the interest of the common weal of the whole state”. The concept of an “ideal state” at the core of his jurisprudential theory embedded the concept of justice as “in essence a balanced structure in which all groups work in harmony and its unity is an amalgam of diversity”. (Curzon) Plato’s proposition is very much connected with the present Malaysian reality. But the issue is more complicated as we are not trying to establish a state with the state already in existence, but the whole ideal of connecting the concept of justice and the state is pretty much in bedlam. It gets even more complicated that the state in its ideal proposition and reality are very much in conflict – being a democratic country in addition to the reality of how this state functions with continuous restrictions and impediments imposed by the sovereign which I believe has eroded the very essence of democracy.
How so?
In the real sense, Curzon when interpreting Plato has warned that democratic states do degenerate, and the hope is to link the ideal state with the Malaysian reality by further deliberation on law and its application.
In simple terms, surely we have seen how laws in a country like Malaysia have perpetuated injustices for example, the ISA, EO and the “conflict” between civil and Syariah laws all housed within the four corners of our Constitution?
It is undeniably true that there are certain laws which do not function in its legitimate mode and eventually result in abuse and maladministration of justice. This happens due to the application of the horrendous concept of “the ends justify the means” which are often masked by external factors that serve not the interest of justice in its true, sacred sense. With regard to the dilemma that often intensifies the conflict between civil and Syariah laws, the very root of the problem is as a result of pluralism within our multi–racial society. It is fairly axiomatic that the concept of law demands further scrutiny where it comes to solving conflicts which always surface when different needs arise among different groups of people, and of which different rights and obligations result from.
Moving on to Aristotle.
Being educated at Plato’s Academy in Athens, Aristotle’s concern was with setting the path for man to achieve “the good”. Again, Aristotle’s idea evolved round Plato’s but we can see that his idea was focused on how to realise such a proposition. The ability for the exercise of man’s will was a key component to this. The contemporary concept of equity also came about through this. This explained the crucial relationship between law and justice, and how these two elements are closely related in achieving the ideal of “the good”. I believe Aristotle gave the essence of “the good” some kind of enlightenment with the idea of a just society no longer mere rhetoric. Law as it stands is a mere standard and it does not hold to an absolute “one–sided legal thermometer” in measuring what is right and what is wrong. It is the duty of the concept of justice to be blended together with what law has to say in making its final call.
But how does one define or measure justice? Justice to one litigant may be injustice to another?
This question, I believe has been long debated by scholars. In simple terms, Islamic scholars defined justice in its literal sense as “putting something in its original place”. Justice is an end that first has to go through sets of standards so as to achieve the end result of what might be equated with the term “justice”.
Besides Plato and Aristotle, who were the jurists you enjoyed reading and why?
Bentham, Mill and Dworkin. Bentham, an economist and a social reformer expounded the doctrine of utilitarianism: “the greatest happiness of the greatest number”. According to him, the moral quality of an action depended upon the amount of pleasure to be derived from it. In his concept of utilitarianism, he suggested that the number or the quantity of the amount of happiness, which I think is very subjective to some extent, is the core point in determining the moral function of the law. Indeed Bentham’s ideas invited a multitude of criticisms. How one is to determine what is happiness and what is pain in an exact mathematical formula is far from possible. What makes A happy does not mean that it also makes B happy. And is it morally right to discard an individual’s happiness when it makes the majority happy? However, despite this controversy, it opened a new realm where the questions demanded our attention for solutions to be sought, at least in the spirit of “the good” suggested by Aristotle. These questions are no longer alien in our multi–racial society.
Isn’t democracy based on this idea?
The theory of democracy may be found in this principle, but again in reality, it may be true that what the majority wants is not necessarily what is best or right. It is also not conclusive to suggest that what the majority deems as right is necessarily what is best for each individual of society. This again is rooted in the problem of equating what is right and what is wrong in a specific mathematical formula. But it is fairly recognised that the customs of civilised nations or peoples, which stand on the same footing as conventions or treaties recognised in the international realm, constitute an important source of international law. Again, as to what constitutes custom, one may look at widespread state practice.
What amounts to “widespread” then?
I believe that this criterion connotes some kind of standard that is required “to meet the interests of each individual as nearly as possible, in line with the needs of the whole state”. (Mill) To arrive at the level “nearly possible” does imply some kind of obligation on the whole state to attend to even an individual’s concern or interest. This would eventually represent the common will of the whole state which is guarded by conscience and human faculty, free from self–interest, ill–will and motives that deviate from our natural sense of virtue.
And Mill?
Being a logician, economist and philosopher, he expounded the legal theory of utilitarianism in a modified form of the original concept propounded by Bentham. Mill sought to substitute the quantitative approach of Bentham’s utilitarianism concept by suggesting that pleasure be graded not by numerical weight but measured in quality. By measuring “the happiness” and “the pain” in their qualitative spheres, it suggests that each individual is given the right to enjoy happiness and suffer pain according to their own definitions guarded by human faculty and conscience. This way “justice” is rather less impossible.
He refined Bentham’s theory but again, the problem at the outset is to measure the qualitative isn’t it?
Generally yes, as “the form” is given more weight than “the substance”. What I mean by this is that the qualitative approach can to a certain extent determine the acceptance of a particular practice, but it does not end there. Just because the majority of people are practicing a particular custom, it is not justified if it infringes the core principle of justice. A step back in history on the practice of slavery and infanticide is relevant. Again, when the will of the majority is not guarded by human faculty and conscience, justice is nothing but a mere saying. In my opinion, Mill’s approach deserves some form of appreciation as it recognises the need or the right of each individual to define and enjoy “the happiness” and to abstain from “the pain”. In light of this utility standard formulated by Mill, I believe that it has some connection with the whole concept of custom under international law. Mill’s formulation harmonised with Aristotle's "natural theory" and the use of human faculties explain some of the present realities which are driven by political motives. Self–interests and unreasonable impediments which are not virtuous imposed by the sovereign become interferences with what is “the good”.
Mill in ‘On Liberty’ wrote: “The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self–protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him, must be calculated to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.”
Does this “harm” theory espoused by Mill have resonance today?
Yes. The concept of individuality is important. The law itself in its essence is not only destined to forbid and punish when crimes or wrongdoings are committed. The essence of the law evolves around the principle of justice, fairness, compassion and love. And the sources of all these virtues can be derived from various factors that have long–standing roots in the history of development of human civilisation. Religion for one has played a crucial role. Indeed morality falls within the ambit of those factors that beautify the very essence of the law itself. Religion is another word or rather term that is specifically referred to when the question of morality is highlighted. Again, what is the proper definition of morality? Is justice within the sphere of morality? It appears to me that to define morality itself is as difficult as defining what justice is. But I believe that a minimum standard to equate or rather associate morality with virtues is fairly acceptable. Then again in reality, “religion” is often misunderstood, in its very concept and applicability which eventually degenerates the inviolability of its essence. I believe that increased dialogue on religion and philosophy would be of great help in responding to the connecting notions of religion, morality and the law. Rushd was paraphrased as saying: “We know religious truths in different ways, but we really do know exactly the same thing.” (www.muslimphilosophy.com)
In light of recent developments to enforce morality in Malaysia, has Mill become pertinent again?
I would say that attempts to enforce morality are not something alien when it comes to the issue of law and society. When the law tries to impose morality, the core arguments may be directed within the “harm” theory as expounded by Mill. It goes back to the objects of law – to prevent harm. But again, it does not stop there. A careful analysis of the “harm theory” must be precisely conducted to conform such notion with the needs of society which may be clearly found in Aristotle’s “natural theory”.
Back to the same question – how would one measure the standard of “harm”? Does moral degradation constitute a form of harm?
I would have to say that, in order to measure harm, one has to analyse a few underlying principles of compatibility between an act that would result in inflicting harm to the whole society or just to one’s self. The law as it stands in its own capacity has proven that even if harm is directed to one’s self, it is still to be taken into consideration in formulating the basis of law. This can be seen in the prohibition of suicide which is practically an act that if viewed from a literal perspective of the common people, only affects the person committing suicide. The notion of morality kicks in as it suggests the very sacred concept of life and family values. I guess it’s worth analysing the values and impact of the “moral acts” in question according to their compatibility with the needs of society before any attempts are made in legalising morality in its general sense.
More specifically, Syariah law appears to allow enforcement authorities to take action on “offences against morality” by consenting adults in private. What would Mill say to this?
In Mill’s theory of “harm”, he did mention that over one own’s body, one is
sovereign. What amounts to “individual harm” as opposed to “collective harm”
must first be drawn. The delineation between the two is subjective in nature.
But the answer to this question can be directed to the very basic question of
the “natural theory” that is involved in this situation. Indeed the scope of the
question is also important to determine the underlying compatibility to those
people it is addressing. What particular concerns are involved in such
imposition? Once the analysis is examined, then I believe it’s fair to draw a
fine line that justifies such imposition or vice versa.
What are you views on Dworkin?
He rejected the concept of law as consisting exclusively of rules. There are also other important standards that are not rules which have to be taken into account. The elements of policy and principle must co–exist in the administration of a legal system. His notion is precise and detailed in suggesting that law itself is not just about rules and its implementation. Law is to be implemented in the light of various other considerations that are outside the ambit of a literal interpretation of the existing rules that constitute law.
He rejects the dichotomy between law and morality?
Questions of morality are the essence of policy. When the question of policy and
principle is taken into consideration by the judges, the duty of the judges is
to balance these elements as to meet the objects of the law. The judges are not
in the position to make new laws as Dworkin rejects the very idea of positivism.
In writing about this, Curzon penned that “mere rules may be modified or even
repealed by the legislature”, but principles on the other hand “may not be
deliberately altered by the legislature”.
But surely sometimes judges do legislate when making judgments in cases?
I’d rather say that judges formulate the mechanism of the law based on existing rules passed by the legislators. Rules remain as they are in their form, but the result or the effect of rules after having to infiltrate the process of deliberation and interpretation must be within a considerable margin of compatibility with the principles of fairness.
Shouldn’t judges “legislate” when it is appropriate?
Again, the mechanism of the law is rather flexible. When the rigidity or the literal approach of the law only results in injustice, it is the duty of the judges to remedy the defect whenever the need arises.
What do you understand “policy” to mean today, if it is not already part of law? What are the guiding principles for this?
I believe that “policy” in its original independent meaning aims to achieve certain goals in the interests of the general community. It is fairly acceptable to include policy under the non–exhaustive list of the “precepts of justice”. This opens various dimensions to transform basic virtues of humanity into the substance of the law. Another guiding principle for this would be the established “principles of natural justice” that is long–rooted and can be traced back in history. This is coherent with latest trends in the development of law infused by concepts of human rights. Dworkin’s basic theory on jurisprudence does play an important role in explaining the notion of law and justice in a more detailed manner. The “principle” that needs to be given due consideration in the administration of the law will explain what justice is all about. Laws or rules may exist in the most rigid or liberal sense as drafted by legislators, and it is the duty of the judges to interpret the law in light of what is just and morally right, and these elements represent the “principle” as suggested by Dworkin.
All this is quite confusing for a simple mind. How has jurisprudence helped societies progress in its continued search for equity and fair play?
I believe that the early theories put forward by Plato and Aristotle and the discussions on jurisprudence have immensely influenced contemporary theories today by complimenting current developments of societies in various aspects of life. Jurisprudence does not in its entirety aim to resolve conflicts within the society. Rather it gives more room to find or set standards towards achieving the ends of law – justice.
Do you have any particular preference for one theory?
I admire the ideas of Aristotle in his zealous effort to harmonise virtues through a philosophical discussion of law. And I believe that his basic theory on this particular sphere has indeed passed the test of time, even in the era of complexities and struggles to achieve “the good” by each and every member of society.
All this is fine but does jurisprudence play a part in legal practice?
Precisely, it does. The development of jurisprudential theories through the years, articulately arranged and deliberated by the scholars, standing through the test of time, through the struggle of emerging complexities within societies, and through the experiences of state practices, have had a significant role in legal practice. We mature and develop with the help and experience of those who have ardently dedicated their lives in making this world a better place for each and every one of us to live a harmonious and meaningful life, and without even a single ounce of desolation between ourselves.
But in Malaysia?
I believe that jurisprudence plays an integral part in Malaysia. Through the mechanism of law, a dissection of various legal theories at hand is conducted in an attempt to achieve a reconciliation of issues with the element of compatibility in order to accomplish the expectations of the people that is, to be treated with justice, equality, honour and compassion.
Are you serious?
Yes. It is so important that it has created a reliable foundation upon which legal issues are confronted with philosophical analysis in views of the basic purposes of human creation and the preservation of the sanctity of life and humanity.
The recent decision by the Court of Appeal in Subashini – how would you link the writings of the jurists you mentioned in analysing the decision?
Indeed there’s an apparent conflict that surfaced in Subashini with regards to the interpretation of the law on procedure, and the application of the correct law to be administered to the parties in the particular case who appear to have different standing in the eyes of the law. When the court attempted to hold that the “rule” should be interpreted literally, I started to ask several questions.
What were these?
When the court decides on a matter which is procedural in nature, what is the
real basis that surrounds the finding that a certain act is or not in accordance
with procedure eventually leading to a dismissal or non–dismissal of a certain
action? What is the basis for saying “the rule” is merely permissive or
compulsory, hence that particular action is to be dismissed or not? Rules may
exist in its most rigid nature if to be interpreted literally, and what makes it
in line with the spirit of the law is how the rigidity is cured through
reasonable deliberation of the judges with the given situation at hand. The
second issue is about the jurisdiction of the two courts involved in this case.
Again, the court has answered the question which led to another question. As far
as I’m concerned, I believe that Syariah courts and civil courts do not have
coordinate jurisdiction due to the nature or subject of their jurisdictions and
parties involved in these two courts. I believe that the segregation is vital in
ensuring that one court does not usurp the jurisdiction of the other so as to
protect the interests of those bound under these two jurisdictions. And it is
fair to say that in a clear cut, simple case, this is not going to be an issue.
But the problem here – how do we reconcile the foreseeable conflict found in
Subashini? How do we accommodate both parties with what is due to them as
guaranteed by the law? How do we ensure that both are treated equally and not to
be left in uncertainty just because they have different interests and needs? One
thing is for sure – both must be attended to fairly. Although I might not be
able to suggest a practical, exact solution, I sincerely believe that the law
does in its own unique way have answers for the questions.
Do you think the decision was a correct one?
I respectfully believe that the court again failed to address the problem but rather left the question unanswered even after judgment was pronounced.
Why do you say that?
The court is supposed to be the place where litigants have recourse to. It’s duty is not to just say that that A is A and if A cannot be B, so let A just be A. Humbly, the court appears to have applied the law in its form, rather than to reconcile the conflict and propose a better solution.
Some have argued that it is not fair for a non–Muslim litigant to have to resort to the Syariah courts for protection, but that is precisely what Subashini appears to indicate. What is your view on this?
In the Malaysian context where the application of Islamic law is only addressed to a specific audience, a non–Muslim litigant who is not bound by the principles of Islamic law may have felt that he or she would be treated unfairly. If the situation is reversed and a Muslim litigant faces the same situation where her husband converts to another religion with the issues consequent to such conversion being similar to those in Subashini – she would have reacted in the same way if she is asked to be bound by civil, family law principles. This kind of situation happens because of the complexities involved in a case of this nature. Imagine – we have one case where the parties have different concerns resulting in different legal implications, and the available laws to govern both parties are also different, providing for two different courts, and to ultimately decide on one conclusion.
Would it appear that the decision in Subashini seems to place the Syariah judicial system over and above the civil courts?
To say conclusively that Syariah judicial system has been made superior to the civil courts would lead to another set of questions. If we were to say that a decision of a particular court is superior to another court, then that would suggest that the doctrine of stare decisis applies to those courts. However, correct me if I’m wrong, for as far as I’m concerned Syariah and civil jurisdiction in Malaysia are independent per article 121(1A) of the Constitution. Taking that into consideration, I’d say that the legal implications is that no court is over and above another court as the segregation of jurisdiction has been made clear. But again, if it’s a clear cut case with regards to jurisdiction, parties and subject matter involved in a particular case, one would not be desolated by the other. In Subashini, the facts are rather complicated.
How would your favourite jurists argue this case?
Instead of arguing which court is superior to the other, it would serve the purpose of justice better if the judges are able formulate a solution acceptable or rather just to both parties by creating attempts to harmonise the two different concerns. Considering the fact that how amateurish I am still in this legal realm, when this kind of dilemma surfaces within our legal system, I can’t help but to think as an ordinary human being and put myself in the shoes of those parties involved, their feelings and grievances, regardless of the differences which exist between themselves. I believe that in the name of justice, there’s something that can be done to realise the efforts of those who still have compassion towards other fellow human beings to see that justice is done rather than chanted.
To follow on, Hart’s law regarding “the union of primary and secondary rules” suggests that it is of great importance that the secondary rules remedy the defect of primary rules in consonance with the accepted practices of the community. In the Malaysian context, it is acknowledged that two sets of laws exist i.e. civil and Syariah law, given the nature of the history and the social practices of our community. Therefore, if the existing rule as of now provides for nothing but a never–ending conflict, it would be justified that new sets of rules be introduced to harmonise the two conflicting arguments which often arise in similar cases. Because I believe that religion itself in its capacity does not bar the administration of justice in its truest sense.
Didn’t Rushd have something to say on this?
Rushd was a staunch admirer of Aristotle’s work. He expounded the principle of compatibility between religion and philosophy. I believe that Rushd’s discussion on this point is very relevant as he suggested that religion is not to be used as a bar to the application of philosophy translated in the administration of law. This should go without saying as it is such enlightenment, in my opinion, that answers many of our problems regarding the misconceptions which have arisen here when the precepts of religion are played out.
There appears to be much conflict arising from “religion–centric problems” recently. This is unfortunate. What would be our role as lawyers, and how does religion and rights relate to Malaysians in general?
I believe that the Malaysian legal reality is not to be seen as some kind of war that one has to win. In the name of justice that often chants its song at the back of our conscience, it is our duty to be part of the effort to harmonise our diversity with virtue and compassion in order to form a just society through the medium of law. We might have different beliefs, skin colour, language but we have the same pure souls which hope for nothing but to see justice upheld and compassion embraced.
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