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.

Judicial diversity creates confidence

The Sunday Star
by Roger Tan

Judicial diversity and meritocracy should go hand in hand. A judiciary that does not reflect society’s diversity will ultimately lose the confidence of that society.

ENGLAND’S senior judiciary has often been described as “pale, male and stale” – that is a white, male-dominated bench.

This is understandable because despite many calls over the years for more diversity in judicial appointments, women and ethnic minorities are still sorely under-represented in the highest echelons of England’s judiciary.

Today, Lady Brenda Hale still remains the sole woman justice out of 12 places in the highest court of the United Kingdom, now known as the Supreme Court. First appointed to the House of Lords as a Lord of Appeal in Ordinary (Law Lord) on Jan 12, 2004, she was reappointed to the new Supreme Court when it replaced the House of Lords in 2009.

In October this year, Rabinder Singh became the first Sikh, a non-white, to be appointed a High Court judge of England and Wales. There is no law lord from an ethnic minority. This year two more white men, Jonathan Sumption, QC and Lord Justice Wilson, were appointed to the Supreme Court.

The President of the Supreme Court, Lord Phillips, did remark recently that he would like the Supreme Court to be 50/50 men and women from the point of perception, but he stressed that it was more important to consider judicial selections based on merit.

Lord Hope, the Deputy President, was not so hopeful, however. “It’s a great mistake to rush it forward and say that diversity must prevail over merit. The system depends on skilled people who can actually do the job and we can’t afford to have passengers here, just in the name of diversity,” he said.

But is this insistence on merit reasonable when actually it is a non-issue? Or is it simply an excuse not to effect judicial diversity speedily? If so, then perhaps the very definition of what is merit should be re-examined.

In fact, leading the call for more women and ethnic minority judges in the courts is none other than Hale herself. She said she was rather tired of being repeatedly told that change was “a matter of time”, but change never came.

Recently, Hale told the House of Lords constitution committee that “the lack of diversity on the bench is a constitutional issue”.

Making the case for preventive detention

The Sunday Star 

by Roger Tan

In the proposed laws to replace the ISA, the government must balance, and balance it well, the state’s duty to protect national security with a citizen’s cherished liberty and human right of access to courts.

I JUST turned half a century old yesterday. But the Internal Security Act, 1960 (ISA) is older still.

In fact, the original preventive detention provision was contained in Regulation 17 of the Emergency Regulations 1948 which allowed the chief secretary to detain, by order, any person for a period not exceeding one year. Interestingly, it was made notwithstanding Section 4 of the Emergency Regulations Ordinance of 1948 which stated that the British high commissioner could make any regulations he considered desirable in the public interest provided that “no such regulation shall confer any right to punish by death, fine or imprisonment without trial…”

When the Emergency Regulations 1948 ceased after the proclamation of emergency ended on July 29, 1960, Regulation 17 was transplanted into a new statute, called the ISA which came into force on August 1, 1960.

But the ISA is not the only preventive law in Malaysia. The other two laws are the Emergency (Public Order and Prevention of Crime) Ordinance 1969 (EO) and the Dangerous Drugs (Special Preventive Measures) Act 1985 (DDA).

The EO, which came into force on May 16, 1969 after the May 13, 1969 riots, allowed the minister to detain without trial any person for up to two years in the interest of public order or in order to suppress violence or prevent crime. Currently, there are few hundreds of detainees placed under the EO.

On the other hand, the DDA, which came into force on May 30, 1985, allowed the minister to detain without trial any person involved in drug trafficking for up to two years.

The reason why these preventive laws still exist today and have not been invalidated by our courts is simply because they are permitted under Articles 149 and 150 of the Federal Constitution even though they are inconsistent with the fundamental liberties provisions stated in Articles 5, 9, 10 and 13 of the Constitution.

In this respect, Prime Minister Datuk Seri Najib Tun Razak should be commended for his bold move to repeal the ISA and the EO.

Protecting Jalan Sultan

The Star
by Yip Yoke Teng

THE Land Acquisition Act 1960 and National Land Code 1965, specifically the amendment made in 1990, are two laws brought into view in the Jalan Sultan debate.

Lawyer and former member of the Bar Council Roger Tan, who is also a columnist with The Star, explained the relevance of these laws in this context.

He first highlighted an individual’s constitutional right to property as enshrined in Article 13 of the Federal Constitution. The Article reads: “No person shall be deprived of property save in accordance with law” and “No law shall provide for the compulsory acquisition or use of property without adequate compensation”.

He noted that even Singapore does not have a similar provision in its constitution.

The word ‘law’ in Article 13(1) can only mean an enacted law. This law is the Land Acquisition Act 1960 (LAA) which is in force since Oct 13, 1960.

Circumstances that allow land to be compulsorily acquired are:

Section 3(1) of LAA states that the state authority may acquire any land which is needed-

(a) For any public purpose; or

(b) By any person or corporation for any purpose which in the opinion of the state authority is beneficial to the economic development of Malaysia or any part thereof or to the public generally or any class of the public; or

(c) For the purpose of mining or for residential, agricultural, commercial or industrial purposes.