WORDS & THE ABCs OF LEGAL JARGON
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E-mail : I love to go to Teluk Padang Jogging Track. Before you can enter the jogging track proper there is a sign at the entrance which reads “No vehicles Allowed Inside The Jogging Area.”
The other day I was jogging when I ran past a woman who was pushing a very large baby pram with twin babies inside. As I ran past her it struck me that she was in breach of the rule disallowing vehicles in the Jogging Area. But I was on my run so I forgot about it. When I passed her and the pram for the second time, my shoelace came off and I momentarily knelt down to tie it back. As I was doing so, I heard loud screams of panic from the lady with the pram. I turned around and to my utter amazement the pram was speeding downhill and headed right towards me at break neck speed. I jumped out of the way and as a result I was thrown down the hill that was next to the jogging track. I suffered bruises together with a broken leg and fractured wrist. I am deciding to sue the lady pram owner. The issues in this case are whether a) the pram owner breached the rule “No vehicles Allowed Inside The Jogging Area” and b) whether a pram is a vehicle given the fact that is has no motor engine and it cannot self propel itself.
V HICKELS
LEX BORNEO: A famous judge once said “Words are the vehicle of thought.” The work of judges and lawyers more often than not involves or concern the interpretation of words. Words can have one meaning in one context or set of facts and then have a totally different meaning in another context or set of facts. Cases are won or lost and the lives and futures of people decided on how words are interpreted. Just like in the situation expounded above a lawyer or a court if the matter came before them would have to argue or decide how to interpret the word “vehicle”. Does a vehicle require wheels, does it need to have a motorised engine and does it have to transport people or things to have the character of a ‘vehicle’?. In the more obvious cases of cars, bicycles, buses or lorries there is no problem in coming to a conclusion that these are vehicles. The problems crops up when you have to look at less obvious cases such as roller blades, skaters or in the situation above, a pram. In this article we consider how the law handles and interprets words in decided cases.
A IS FOR AYURVEDIC MEDICINE
The word Ayurvedic has its origins in the ancient language of Sanskrit. It is a combination of 2 words. Ayus which means life and Veda which means sacred knowledge. Ayurvedic medicine is a form of traditional medicine originating form India. In the year 1940 just before the Second World War hit the shores of Malaya this word was the subject of interpretation in the Court of the Federated Malay State of Selangor in the suit of RAMACHANDRAN v KANDIAH ALIAS SUBRAMANIAM. The plaintiff in this case was the proprietor of the Ayurvedic Medical Hall at 72 Station Road, Sentul, Kuala Lumpur. He had a diploma from the Lanka Ayurvedic Medical College, Jaffna, Ceylon.
The issue in this case was whether the plaintiff, who is not registered as a medical practitioner, can recover charges for medical treatment from the defendant. Section 5 of the Medical Registration Enactment of that era provided that only Registered Medical Practitioners may recover in any Court charges for medical and surgical services, but section 10 specifically recognised the practice of native systems of therapeutics as follows:—
“Nothing contained in this Enactment shall be construed to prohibit or prevent the practice of native systems of therapeutics according to Indian, Chinese or other Asiatic method.”
The British judge who ruled on this case had this to say “Ayurvedic medical treatment is a well-known Asiatic system of therapeutics. It has been recognised as such by the Ceylon Courts, and I can see no reason why it should not be so recognised in the Federated Malay States. There is, therefore, nothing in the Medical Registration Enactment to prevent a practitioner in Ayurvedic Medicine from recovering reasonable charges for his services.
In this case the plaintiff’s charges appear to have been very reasonable, and he was entitled to judgment on his claim.”
LEX BORNEO POSER:- Do you agree with this decision? The English judge may have got it politically right but did he apply the correct law under Section 10 which allows the practice of native systems of therapeutics but doesn’t say anything about payments of monies for services provided and that the Court will assist to recover unpaid fees? We are interested to hear what you think.
B IS FOR BROTHEL
In 1931 the meaning of the word ‘BROTHEL’ came up for decision the Singapore criminal appeal of Chi & Anoyu (Female Persons) v Rex (which is Latin for King, since Singapore at that time was a Colony under the King of England).
In this case the appellants were the occupiers of No. 121, Kitchener Road. They were were charged with knowingly permitting such premises to be used as a brothel in contravention of Section 7 (b) of Ordinance No. 15 of 1930 (Women and Girls Protection).
In order to sustain a conviction under Section 7 (b) of Ordinance No. 15 of 1930 (Women and Girls Protection) it had to be proved that the premises where an offence under the
Ordinance is alleged to have been committed had been habitually used by two or more women or girls for the purpose of prostitution. Proof of a single instance of user by two
or more women was not sufficient. The judge in this case discharged the accused and she was held not to be operating a brothel.
THE ‘ENGLISH BROTHEL’ & THE ‘LOCAL BROTHEL’
In the words of the Learned Judge “ The English law did not attempt to define a brothel but left it to the Courts.
The English Courts have always insisted that “brothel” involves a place of resort. It has therefore been held that the allowance of an isolated act of prostitution by strangers to the occupancy, would not make the place a brothel.
….repeated acts which one woman, a stranger to the occupancy, is allowed to do, would satisfy the definition.
This law is well settled. But it has been held that if one woman occupies a place for the purpose of habitual acts of prostitution, that does not make it a brothel, and it has been doubted whether two women independently occupying rooms in the same house each for her own prostitution, would make the house a brothel.
Our draftsman of section 2 of Ordinance 15 of 1930 appears to have attempted to cover both these lines of judicial decision in one short definition. He says: “Brothel” means a house or place occupied or used by any two or more women or girls for the purpose of prostitution.
That solves the open question above propounded and makes a house a brothel if occupied by two or more women each for her prostitution. But it makes much more difficult of local
application the other line of cases concerning the allowing of strangers to use the premises of the accused for acts of prostitution.
The user must be habitual in either case, and not a mere solitary act. But whereas allowance of habitual user by one woman would make the place a brothel in England, in this Colony allowance must be proved of habitual user by more than one woman.
…………..the actual facts proved were that one Arab took a woman once to the Accused’s hotel for an act of prostitution; and that two other women together came there once for an intended act of prostitution. What was proved therefore was that the Accused allowed one solitary use of her premises by two or more women, strangers to her occupancy, for purposes of prostitution. That is not enough to satisfy the requirements of our definition.”
LEX BORNEO POSER: Do you understand or agree with this decision? Why did the Judge differentiate between the English definition of brothel (which appeared to be a stricter standard) with the Colonial definition of brothel (see underlined sentences above). If someone allows a stranger to use her premises even on one occasion for prostitution does the number of times make any difference?
Consider this situation. If a man habitually brings prostitutes to his home for performing sexual acts does that make his house ‘a brothel’? What if the man is merely a tenant in the house. Would the landlord then be guilty of permitting the operation of a “brothel”?
C is for COMPUTER PROGRAMS AND COMPUTERS
Everybody knows what a computer or a computer program is but when you are asked to define these terms in words and sentences then don’t be surprised to find yourself tongue tied. You may define a computer as an electronic machine running software with the hardware of a CPU, monitor and a keyboard. Sounds like a workable definition when what you have in mind is a desktop computer. However the definition doesn’t quite fit the bill when you think of a laptop since the CPU, monitor and the keyboard in a laptop computer are all made in one integrated piece. And your definition does not really hit the nail on its head because you have described what looks like a computer but nothing in your definition talks about what the computer actually does which is the distinguishing feature from other electronic equipment. You might as well have been explaining about a microwave or a audio system by using the same words. And how do you describe a computer program? What distinguishes it from other programs?
Problems such as these are faced from time to time by judges
and lawyers who are required to be a sort of jack of all trades
and assume understanding of information technology and
other fields of knowledge even though they did not receive
such training in their academic and practical training in these
areas.
In 1997 the High Court of Kuala Lumpur had to deal with the definition of what is a computer program in a civil suit dealing with copyright issues known as CREATIVE PURPOSE SDN BHD v INTEGRATED TRANS CORP SDN BHD.
The plaintiffs were companies engaged in the business of designing, developing and marketing of software programs called “MEP 3”. They claimed that the defendants had infringed the copyright of their computer software programs by reproducing and distributing them to the public. The plaintiffs said that the defendants had ‘hacked’ or modified the programs to circumvent the ‘dongle’ which was a security feature for the programs.
The mechanics of the software program
The plaintiffs’ case was that the software programs were designed as comprising two main modules, namely:
(a) a ‘loader program’; and
(b) the ‘main program’.
The loader was encoded with a special protection code as a deliberate protection against unauthorized copying. The loader functions to start up the main program, but the main program cannot be accessed if the special code in the loader fails to detect the presence of a particular copy protection device. Between 1985 up till June 1994, the copy protection device used was the ‘key diskette’. In mid-1994, the ‘key diskette’ was replaced by a new method of protection involving the use of a ‘dongle’, a hardware attachment fitted to the printer part of a computer. The dongle functions in the same way as the key diskette. Instead of detecting the presence of the key diskette, the protection code in the loader program looks for the presence of the dongle.
The plaintiffs’ case was that the defendants infringed the copyright in MEP 3 by reproducing without licence or consent, similar software programs, and distributing the infringing copies to the public. They also submitted that the defendants had modified the infringing software to circumvent the dongle.
In order to deal with the case the learned judge had to first define what actually is a computer program. He said that In order for him to assess the level to which copyright protection can extend, and how such materials can be infringed, it was necessary to understand the essential nature and characteristics of a computer software program.
To do that he first turned to Section 3 of the Copyright Act 1987 which defines ‘computer program’ as follows:
‘computer program’ means an expression, in any language, code or notation, of a set of instructions (whether with or without related information) intended to cause a device having an information processing capability to perform a particular function either directly or after either or both of the following:
(a) conversion to another language, code or notation;
(b) reproduction in a different material form; …
He then turned to review and adopt the very graphic description of the workings of a computer from a Commonwealth decision in the following manner
“Computers only work in binary code, a code made up of 0’s and 1’s. So all data held in a computer or held on a computer storage device (such as a RAM, disc or tape) must be so coded. Likewise, computer programs — the instructions to the processor as to what to do with data — must be in binary form. A binary program code is called an ‘object code’ or, more graphically, ‘machine code’. Computers are given so-called ‘operating systems’. These are a kind of basic program concerned with essential computer functions. Popular operating systems are, for instance, ‘MS-DOS’ and ‘Unix’. …..These systems are themselves, when in the computer, in binary code. When an application program (i.e. one which will be caused for a particular application) is loaded into the computer it is loaded, as it were, on top of the operating system. The applications program speaks to the operating system which speaks to the computer.
Now binary form is practically impossible for a human to read or write. Humans write programs in a particular language called a higher level language. That language must have a perfect syntax and grammar. Computers are unforgiving: there is no room for irregular verbs with them. Programming languages are a mixture of words of English and a system of a kind of algebraic instructions. There are many such languages. ….The program the human writes is called the ‘source code’. After it is written, it is processed by a program called a compiler into binary code. That is what the computer uses. All the words and algebraic symbols become binary numbers. Now when a human writes, he often needs to make notes to remind himself of what he has done and to indicate where the important bits are. This is true of life generally and for programmers. So it is possible to insert messages in a source code. A reader who has access to it can then understand, or understand more readily, what is going on. Such notes, which form no part of the program so far as the computer is concerned, are called ‘comments’. They are a kind of side-note for humans. In the DIBOL and DBL programs with which I am concerned, a line or part of a line of program which is preceded by a semi-colon is taken by the compiler as a comment. That line is not translated by the compiler into machine code. The program would work without the comment. It follows that although the computers are unforgiving as to spelling in their programs, they do not care about misspelt comments in the source code. If a line of operational code (a ‘command line’) is modified by putting a semi-colon in front of it, it ceases to be operational. The computer treats the code as a mere comment. Computer programmers sometimes do this with a line which pre-exists when they no longer want that line, but are not sure they may not need it in the future. Or, if the programmer thinks he may want to add a feature to his program in the future he may put in a comment allowing for this. He is unlikely in the latter instance to put in detailed code only to comment it out. A general note will do.
Source code, being what humans can understand, is very important to anyone who wants to copy a program with modifications, for instance to upgrade it. It is the source code which shows the human how it all works, and he or she will also get the benefit of all the comments laid down by the original programmer. Software houses, not surprisingly, normally keep their source code to themselves and confidential.
The learned judge then went on to hold that the Defendants in this suit were in breach of the Copyright Act and even though they did not directly copy the original program of the Plaintiffs, they had hacked the Plaintiffs’ program by circumventing or bypassing the ‘dongle’ and this was in fact an infringement of the Plaintiffs’ copyright.
This is a very interesting and detailed description of the workings of a computer program but how would you define a computer program or a computer within a sentence that encapsulates the essence of its meaning.
In 1997 Parliament passed the COMPUTER CRIMES ACT 1997 together with other cyberlaws which were aimed at launching Malaysia’s arrival in the ‘Information Age’.
The Act defines a computer program in the following manner:-
“program” means data representing instructions or statements that, when executed in a computer, causes the computer to perform a function.
What about a computer? Under Section 2 of the Computer Crimes Act 1997 “computer” means an electronic, magnetic, optical, electrochemical, or other data
processing device, or a group of such interconnected or related devices, performing logical, arithmetic, storage and display functions, and includes any data storage facility or
communications facility directly related to or operating in conjunction with such device or group of such interconnected or related devices, but does not include an automated
typewriter or typesetter, or a portable hand held calculator or other similar device which is non-programmable or which does not contain any data storage facility;
The Malaysian definition provides that for a device to be
called a computer for the purpose of the Act, it must be capable of performing four functions namely
logical, arithmetic, storage and display functions.
Compare this definition with the definition of ‘computer’ in the
United States Computer Fraud and Abuse Act 1986 which reads as follows: ‘an electronic, magnetic, optical, electrochemical or other high speed date processing device performing logical, arithmetic or storage functions and includes any data storage facility or communications facility directly related to or operating in conjunction with such device.’
Both the Malaysian and US definitions share 3 functions that are requisite for a computer to qualify as a computer, namely the capacity to perform logical, arithmetic and storage functions. However the US definition makes no mention of the display function.
So therefore who speaketh the truth about what a computer actually is?
The Vehicle of Thought
We end this article by quoting from the words of departed soul of the famous English judge Lord Denning who had this very profound statement to make regarding words when he said
“ To succeed in the profession of the law, you must seek to cultivate command of language. Words are the lawyer’s tools of trade. When you are called upon to to address a judge, it is your words which count most. It is by them that you will hope to persuade the judge of the rightness of your cause. When you have to interpret a section in a Statute or a paragraph in a Regulation, you have to study the very words. You have to discover the meaning by analyzing the words – one by one – to the very last syllable. When you have to draw up a will or a contract, you have to choose your words well. You have to look into the future – envisage all the contingencies that may come to pass – and then use words to provide for them. On the words you use, your client’s future may depend.
The reason why words are so important is because words are the vehicle of thought. When you are working out a problem on your own – at your desk or walking home – you think in words, not in symbols or numbers. When you are advising your client – in writing or by word of mouth – you must use words. There is no other means available. To do it convincingly, do it simply and clearly. If others find it difficult to understand you, it will often be because you have not cleared your own mind upon it. Obscurity in thought inexorably leads to obscurity in language.”
LEGAL WORDS AND PEOPLE
The words quoted above are also applicable not only to lawyers but also to the ordinary public.
Too many times ordinary folks end up signing on the dotted line of a document ever so quickly without reading or considering the fine print and how it will affect their future. The frustrated or angry spouse who desperately wants a divorce ‘right away’ may sign away his or her rights of reasonable access or custody of the children and forgo financial support from the other spouse only to gravely regret many years later. The vendor of a property desperate to close the sale of his house may forgo the right to deliver vacant possession only upon full payment of the purchase price and may end up having to incur expenses later on and further delay by having to evict the defaulting purchaser. What is forgotten in the flurry and rush of getting over with the legalities is that delay or time taken to consider matters may actually bring peace of mind and ensure performance of the contract. For a person having been stuck in a bad marriage for years or wants to desperately sell his house, another week or month of waiting before committing to the dotted line won’t create a life threatening situation, having survived for so long anyway.
Secondly it is important to secure independent advice and protection of your right by having separate lawyers for each party. Although the practice of having one lawyer acting for both parties is cheaper in the present, one might end up paying for a very expensive mistake or consequence in the future.
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