Which is worse, disobeying or obeying bad laws?
Writer: Wong Chin Huat
Published: Fri, 06 Jan 2012
Since Nov 26, people have been gathering in yellow at some parts of KLCC at 2pm on Saturdays. They stage a series of “Malaysians can …. at KLCC without police permit” protests. You can fill in the blank while walking in KLCC park, reciting poems, posing with Christmas trees, picnicking, and celebrating birthdays.
It seems harmless and innocent, but the KLCC management tries ways and means to chase these people away, from sealing off the park, sprinkling water to even threatening court injunction. Why does the mall have to overreact?
If Parks had not disobey the law in 1955 would African-Americans remained second class citizens in the United States today?
Because this group called Killthebill.org – of which I am a proud member – is deemed illegal under both the current Police Act and the Peaceful Assembly Bill which have been passed by both houses of Parliament and will be law within weeks.
Under the Police Act, any gathering of three or more persons is a public assembly and requires police permit.
Under the new bill, assembly is defined loosely as “an intentional and temporary of a number of persons in a public place, whether or not the assembly is at a place or moving”.
All assemblies will have to notify the police 10 days ahead and can be prohibited, with seven exceptions: religious assemblies, funeral processions, wedding receptions, open houses, family gatherings, family days held by companies, general meetings of associations.
Under this new bill, does a picnic among friends constitute a public assembly which needs police notification? You bet.
Strictly speaking, a picnic cannot be organised by anyone below 21 years of age. It cannot be held within 50 metres from 12 categories of prohibited places, including schools, places of worships, petrol stations, hospitals, bridges and ports, train and bus stations. Lastly, parents who bring their children to join a picnic which is not religious or familial can be fined up to RM20,000.
If this ridiculous bill is strictly enforced, even your pasar malam trip will need police notification 10 days in advance. If that is the case, there won’t a single police officer left to patrol the streets.
So, why should we be bothered if we know that this law will not be enforced fully? The answer is another question: how do you draw the line when it comes to complying or not complying with the law?
Who will decide? The discretion will eventually lie with every OCPD. A great deal of discretion means “rule of man”, vis-a-vis “rule of law”. It means inevitable inequality and inconsistency in law enforcement.
This is a main reason why Killthebill.org and the wider civil society oppose the Bill and want to kill it. The continual weekly illegal assemblies even after the bill is passed by the Parliament have now have spread beyond KLCC to many cities and towns. This is a campaign of civil disobedience to defy the law and show it is unenforceable.
This is also where I differ substantially with Mr Roger Tan, a prominent lawyer who opines that civil disobedience is only justifiable “under the most exceptional circumstances and that also, only if it is absolutely necessary in the interests of justice and nation”.
And “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”.
We certainly have a very different understanding not only of civil disobedience, but of rule of law too.
If rule of law is to be the basis of modern society, then the law must only be enforceable in an equal and non-arbitrary manner, it must also be reasonable.
In other words, even if there is enough police force to deal with notifications of tentative picnics, such notifications must not be in the law because it is simply ridiculous.
To appreciate this, one needs to ask the fundamental nature of government or state which formulates laws. Humans can organise collective life in three basic forms: market, society and state, with distinctive operating principles.
Market supplies private goods based on profits or self-interests, while the other two supply public goods which should not or cannot be optimally supplied by market, from defence, law and order, public health, to social welfare.
What is the difference between state/government and society? Society is based on free will while state/government is based on coercion or violence. If all members of a community can voluntarily abide by a set of common rules, no enforcement agency will be needed and state/government can cease to exist.
That is why Thomas Paine, the English thinker who inspired the American Revolution, said: “Society is produced by our wants, and government by wickedness; the former promotes our happiness positively by uniting our affections, the latter negatively by restraining our vices.”
It is for that reason Paine famously pronounced this true voice of reason: “Society in every state is a blessing, but government, even in its best state, is but a necessary evil; in its worst state an intolerable one.”
In that sense, what is core to state is not judges or lawyers who represent reason, but police who represent force.
Uncritical obedience of law is to subject our society to, ultimately, violence than reason.
We therefore must ask, before abiding by the Police Act or the new Peaceful Assembly Bill, why is it that a shopping crowd – no matter how organised – will not get policed, but police will give full attention if the same group of shoppers express their love for their community or country?
What is being policed? Is it the body or the mind? Can we have freedom of speech without freedom of assembly?
Mr Tan’s criteria for justifiable civil disobedience, “the most exceptional circumstances” and “absolutely necessary in the interests of justice and nation”, cannot withstand the historical examination.
When Rosa Parks refused to give away her seat to some white passengers but rather pay the fine in protest of the segregation law in 1955, how many Americans then would think that ending the apartheid system was an absolute need for justice and nation? Was defying that rule in anyway ‘a most exceptional circumstance’ before Mrs Parks’ act of defiance?’
Had Ms Parks followed Mr Tan’s advice, African-Americans would have remained second class citizens. Forget about becoming president or secretary of state.
To critically assess a law before abiding by it is both intellectually and morally demanding. But sometimes, that is what keeps us as free citizens rather than slaves of laws.