Sunday, December 11, 2011

Civil disobedience cannot rule the law

The Sunday Star
by Roger Tan

Street Protest: Civil disobedience is becoming a popular tactical weapon used by politicians and civil rights movements to justify their violation of laws.
IN 1996, when my clients and I were negotiating with the Attorney-General’s Chambers, led by its then head of the advisory and international division Tan Sri Abdul Gani Patail, I warned that too high a rate might cause the public to refuse payment to privatised entities out of civil disobedience.

Then, both my learned friends across the table and my own clients were rather amused by my argument.

Today, this term “civil disobedience” appears to be the “in-thing” among politicians, particularly those from the opposition, backed by non-governmental organisations and civil rights and liberties movements.

It is becoming a popular tactical weapon used by them to justify their violation of laws which, in their view, are “unjust”, apart from indulging in some polemics.

Hence, we saw various street protests being held without a police permit in contravention of the Police Act (1967).

So, what is civil disobedience? I would define it as an open and deliberate law-breaking or infringement of rights to get public attention that is often politically motivated, and normally is carried out because the civil disobedients conscientiously feel, whether sincerely or otherwise, that they are morally obliged to do so.

Pressure groups around the world have, over the years, resorted to this means to secure their desired legal and social changes. But for an act to be considered civil disobedience, the disobedients must also be prepared to accept punishment for infracting the laws.

This is, in fact, fine with them as the courtroom will give them the publicity they seek for the causes and issues which they are advancing.

The father of the modern concept of civil disobedience is said to be American Henry David Thoreau (1817-1862). For six years, he refused to pay taxes because of his opposition to slavery and the Mexican-American War. For that, he was thrown into jail in July 1846, but he only spent one night in jail because the next day, his aunt, against his wishes, paid his taxes.

We are undoubtedly more acquainted with celebrated modern-day civil disobedients such as Mahatma Gandhi (1869-1948), Martin Luther King (1929-1968) and Rosa Parks (1913-2005).

Parks was fined for refusing to give up her bus seat to a white passenger but Gandhi and King were jailed for disobeying the law. There is no denying that Gandhi’s Satyagraha and King’s civil rights movements brought immense legal and social changes to India and the United States respectively.

These civil disobedients were much inspired by the words of St Augustine (354-430) that an unjust law is no law at all (lex iniusta non est lex). So, one is under a moral obligation to disobey such a law. King also added that “sometimes a law is just on its face and unjust in its application”.

The story told by Professor Charles Lund Black (1915-2001) of Yale Law School, an outspoken critic of the death penalty, about one Pawnee Indian brave named Peshwataro, best illustrates the operation and benefits of civil disobedience:

“The law of the Pawnee commanded that on the summer solstice there take place the sacrifice of the star maiden. A girl was each year captured from a neighbouring tribe and bound to a stake. At dawn, the Pawnee braves would ride in a circle about her and shoot their arrows into her.

“This was not done for sport, but because, like so much that seems cruel in so many societies, it was thought to be a cruelty necessary to the maintenance of the moral and religious order.

“Many Pawnees, through what processes or influences I cannot say, came to disapprove of it and talked of doing away with it, but it was the law, and conservatism was too strong.

“Then one summer solstice at dawn this Peshwataro, a young man of high repute with the tribe, broke from the circle before an arrow was shot, rode furiously to the stake, freed the girl of that year, slung her in front of him, and escaped with her.

“He left her with her people and then rode back, much as Gandhi might have done, to submit himself to his fellows. As it happens, they did nothing. It was time, really, to stop this business; they had only needed an act of such courage to make that clear.”

Well, some of our local aspiring acolytes of Gandhi and King may want to courageously emulate Peshwataro as a knight in shining armour riding on the populist waves of civil disobedience.

But surely one must pause and rationally ask this pertinent question: “Can civil disobedience practised in the extreme be a potent threat to the rule of law in a democratic society?”

In this respect, many renowned jurists have stressed the importance of rule of law. According to the advice of St Thomas Aquinas (1225-1274), while unjust laws do not oblige in conscience, obedience to law is still required to avoid disorder.

The United States Supreme Court Justice Abraham Fortas (1910-1982) had also argued that “each of us owes a duty of obedience to law. This is a moral as well as a legal imperative.”

The father of the concept of separation of powers, French jurist Montesquieu (1689-1755), once said liberty is the right to do as the law permits.

Hence, on Sept 30, 1962, President John F. Kennedy (1917-1963) said in his radio and television address to his countrymen: “Our nation is founded on the principle that observance of the law is the eternal safeguard of liberty and defiance of the law is the surest road to tyranny ... Americans are free, in short, to disagree with the law but not to disobey it.”

It follows there are several valid arguments against civil disobedience. First and foremost, if the laws have been passed by a government democratically elected by the people, then it is undemocratic for anyone to disobey the laws.

As civil disobedients usually constitute a minority, it is also undemocratic for the minority to impose its view on the majority. Neither is this fair to the law-abiding majority.

Further, whether one likes it or not, disobeying the law is essentially a criminal conduct regardless of how novel is the motive of the civil disobedient.

In other words, one can only change the democratically-made laws and policies through the ballot box, and not by way of breaking the laws. If a civil disobedient goes unpunished, this will result in a general disobedience to law by the populace which will eventually lead to anarchy.

Some would call this concept an Occidental import which is alien to our Asian society. Yet other legal writers have equated civil disobedience with political brinksmanship capable of generating hostility in the community. It can also be prone to violence if some contumacious disobedients are incapable of controlling their emotions.

Furthermore, these acts committed in the name of morality are revolutionary in nature, and in that sense are more dangerous than a normal crime.

Proponents of civil disobedience obviously disagree. King argues that the actual impediment to freedom is from the moderates who are more devoted to “order” than “justice”.

Writing from the Birmingham jail on April 16, 1963, King had this to say about breaking the law: “One who breaks an unjust law must do it openly, lovingly and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and willingly accepts the penalty by staying in jail to arouse the conscience of the community over its injustice, is in reality expressing the very highest respect for law.”

A fortiori, these proponents have also responded that if the laws passed by a democratic government are so undemocratic that they impede democracy, then it is the duty of every true democrat to disobey it.

Be that as it may, the bulwark of our liberties is indubitably a fearless and independent judiciary. If not for this, civil rights movements in America would not have achieved that much notwithstanding King’s conviction and jail sentence were once affirmed by the Supreme Court.

So in 1954, the Supreme Court ruled in the landmark case of Brown v. Board of Education that it was unconstitutional to establish separate public schools for black and white students.

In his book, The Rule of Law, Lord Bingham (1933-2010) narrated that according to President Eisenhower’s biographer Stephen Ambrose, when the case was still going on in the Supreme Court, Eisenhower invited Chief Justice Earl Warren to the White House for dinner together with the Attorney-General, Hebert Brownell and John Davis, counsel for the segregationists and several other lawyers. However, counsel for Brown was not present.

Eisenhower not only had Davis sit near to Warren, but according to Warren, Eisenhower “went to considerable lengths to tell me what a great man Davis was”.

As they were leaving, Eisenhower took Warren by the arm and said, “These (the Southerners) are not bad people. All they are concerned about is to see that their sweet little girls are not required to sit in school alongside some big overgrown Negroes.”

But Warren did not yield to this presidential inveiglement. On May 17, 1954, the Warren Court (9-0) unanimously ruled for Brown. Even though Warren felt that was the end of the cordial relations between them, Eisenhower went ahead to implement and enforce the judgment – but not without him cussing that his biggest mistake was the “appointment of that dumb son of a bitch Earl Warren!”

In any event, one thing is for sure, that is, differences between proponents of civil disobedience and the rule of law appear rather irreconcilable, and the debate will rage on.

But to my mind, civil disobedience cannot be the order of the day, and it must not in the ordinary course of events rule and overrule the law. If it is to be justifiable, it is only possible under the most exceptional circumstances and that also, only if it is absolutely necessary in the interests of justice and nation.

Failure to recognise this is itself a threat to the rule of law upon which every modern society is founded, and this can transform into a perfect recipe for anarchy and tyranny.

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