Yeo Yang Poh responds to NST, who refuses to publish his views

I refer to the New Straits Times editorial The rule of law on Dec 11. You began by stating that no arrests would have been made on Dec 9 "If the unlawful marchers had responded to the warnings to disperse."

I take it that you meant to say "If those accused of being unlawful marchers had responded to the alleged warnings to disperse" since those allegations (and others that followed in your editorial) have yet to be established in the pending cases. This would have been in line with your paper's usual care in distinguishing allegations from proven facts when commenting on pending cases.

You have argued that defiance of any law cannot be defended in any circumstances. No law, no matter how bad it is, can be broken. Your only proposed solution to a bad law is to change it. For as long as it has not been changed, every bad law must never be broken. Breaking a bad law would, in your view, lead to lawlessness.

That view is not new. It offers the language of legal rights but it is not the language of human rights. The issue, therefore, is whether the framework of legal rights is sufficient for a society. If it is, then there is no need for the language of human rights.

If your view is right then there is no place for civil disobedience in any society. One would have to conclude that Rosa Parks, whose defiance of segregation law (by sitting on the bus in breach of the law) triggered a chain of events that led to its eventual change, had sparked reform in an unacceptable and indefensible way.

One would have to concede that Mahatma Gandhi was indefensibly wrong when he led thousands to defy the law on salt-making of the time. Nelson Mandela would have to apologise for having been a repeated offender and law-breaker in organising and participating in countless illegal rallies during his youth. The list of examples is long.

Readers such as I would be interested to know if this is the position held by one of the leading newspapers in 21st century Malaysia. If I have misconstrued your views then I look forward to a clarification and a debate on these issues in your papers in the coming days, accommodating and publishing diverse views. That would contribute towards nation building and would, I am sure, not break any law.

I agree with you that society must seek to change bad laws. The process of change, however, cannot merely be limited to the election of representatives and the legislative mechanism alone, as some politicians are prone to suggest these days. All forms of peaceful expression, lobbying and demanding for change are legitimate and important parts of the change process.

You suggest that the only legitimate way to deal with a law that is perceived to be oppressive is to continually debate it and (I presume) hope that such public debate will one day bring about the desired change. You have ruled out other methods. For as long as that oppressive law has not been changed, one would continue to debate the issues and suffer the oppression no matter how long the period of waiting may be. This, I deduce, is your notion of good citizenry.

However, your examples relating to proposals for changes to the law on freedom of assembly chillingly illustrate to your readers how true it is that talk alone is cheap. It paints a picture of despair to good citizens if talk is all that one can do.

The proposals for reform cited in your examples were not made by demonstrators or marchers, but by bodies and persons tasked by the government to do so. They were not made last week, last month or last year. Yet the law has not been changed. That, if I understand you correctly, makes no difference.

You speak of the rule of law. I wish to say that there is a world of difference between "rule by law" and "rule of law". Rule by law occurs everywhere, in the worst of places, including societies such as Zimbabwe and Burma. Laws made by military rulers are nevertheless laws of the land. Peaceful people everywhere are always ruled by the laws of the land.

Rule of law, on the other hand, is a system that must conform to multiple requirements, norms, standards, expectations, checks and balances. This can be the subject of another public debate and I look forward to your paper providing the space and opportunity for such a debate.

The writer is former Bar Council president. New Straits Times has refused to publish the above letter.

EDITORIAL: The rule of law

15 December, 2007

BAR Council president Ambiga Sreenevasan may feel that the arrest of nine people, including four lawyers, in Kuala Lumpur on Sunday was "totally unnecessary and unfortunate". But the fact is that no arrests would have been made by the police if the unlawful marchers had responded to the warnings to disperse. In the event, they paid no heed to the warnings, leaving the police little choice but to round them up and charge them with taking part in an illegal assembly. What was really regrettable was that some members of the legal fraternity had decided to go ahead with the march when the majority of the Bar Council – apparently after two days of debate – had voted to call it off.

What is even more disturbing is that the Bar Council chief has chosen to defend this act of defiance of the law of the land and the council's decision as an exercise of their right of assembly.

In the first place, freedom of assembly is not an absolute right. There are qualifying clauses to Article 10 of the Federal Constitution that place restrictions on this right in the interest of security, public order or morality. To assert that the requirement of a police permit is an "unnecessary fetter", or that it makes for a bad law, is no argument for breaking the law. Rather, this is an invitation to lawlessness.

In any event, the right solution to a bad law is to change it, not to break it. No one has the right to choose to comply only with those laws he likes and to violate those laws he dislikes. That's what it means to say that we live under the rule of law and that nobody is above it.

Laws shouldn't be broken just because they do not sit well with our sense of what is appropriate. If those getting hot under the collar about how unfair and unjust the curbs on freedom of assembly are, that is a matter for public debate, not a case for contravening the law.

Such a dialogue has been started by the Royal Police Commission with its proposal to give permits "as a matter of course", the Human Rights Commission of Malaysia with its recommendation to replace permits with "notifications", and Tun Musa Hitam with his thoughts on what needs to be done to make demonstrations orderly.

The Bar Council should continue to contribute to the debate on freedom of assembly rather than support lawyers who do not uphold the rule of law.