An English friend told me that he had been taught at school that Britain was in all the places coloured pink on the map in order to teach the natives how to govern themselves. The superior white men strutting around the globe were, however, busy piggy-backing local governance practices; and replacing leaders where considered necessary.
Malaysia’s legal system is based on codified law, based on precedence; and adversarial in the courts. English is the language of the law. Thus, a thousand years hence, when an archaeologist discovers Malaysian court records, he will be confused about the ethnicity of those who had created these records.
Observing the British system of law in Australia, I wonder why the English-speaking world prefers an adversarial process for getting at the truth in a court. In France, a magistrate leads the investigation, with sound prospects of unearthing the truth without being diverted by barristers seeking to win. As well, instead of asking pertinent questions, a defence barrister may promote alternative scenarios – in the interests of justice, of course. “I put it to you … … etc., etc.” does not seem to me to be a search for the truth.
I had an interesting experience of a highly-paid barrister insisting, during a court case when I was a witness, that “surely” I must know something – which I had repeatedly said I did not know. In the meanwhile, the judge just watched the proceedings. Had he been a barrister before he became a judge? I have read that contesting lawyers tell the judge, before a hearing is commenced, how many weeks they need for a hearing. What then is the judge’s role? What of efficiency and costs?
I do wonder if justice is adequately served under the British approach. Isn’t the law meant to be the pathway to justice? In positing precedents, could one cherry-pick? How much scope is there for personal preferences? Is there scope for the exercise of wisdom by a judge, especially in terms of the good of the people, of society?
Nehru (in his ‘Glimpses of World History’) referred to the village councils operating in India a long time ago. Did the elders there apply wisdom instead of being bound by past precedents? Curiously, Britain apparently had village councils of the round-headed people living there before the long-headed ones arrived by long-boats – just like the European colonial intruding into self-governing Asian communities. Could there have been more justice in these pre-invasion communities? Is it not the welfare and future of the community that is to be protected by law?
n the current post-colonial realm, European legal systems and practices will remain in now independent nations. French practice is obviously superior to that of the British, in terms of justice. In the reality of mixed ethno-cultural populations in most of the former colonial territories, village or tribal systems of law and justice may now be inoperable.
Codified law, a legacy of British colonialism, will meet the bill in current circumstances for mixed-population nations. But, why should precedents be imperative, considering that mixed populations with varying cultural values may require, in certain circumstances, new approaches? These need to be more appropriate for prevailing circumstances.
That is, is there not scope for more wisdom, and more freedom from past decisions? One can be hog-tied by law, when law should aid justice for the individual and society contemporaneously.
RAJA ARASA RATNAM 