Replying Johan Jaaffar : The law and the art of being popular

I blog to disagree with the contention by Johan Jaaffar. Though I agree that everybody including the Royals are below the law as all men are equal below the law and that simply mean the Rule of Law in our Rukunegara.

As for me, I am a strong believer of a moral attachment in society and I also view that law is just a secondary attachment to provide order for the people to follow. As such between public morality & safety and the law, public morality outweigh that of the law. That means, those in authority such as the police, state assemblyman and parliamentarian owe a higher duty of care to see to the public needs and that outweigh the supremacy of the law. This means morality has the force of law to determine fairness and justice. I am not saying that the law must be broken but that the law must be seen in continuation with the desire of the people. Justice must NOT ONLY be done but must be seen to be done. The law MUST run in tandem with the everyday life of the people.

If things and situation becomes unfair and unjust, than fairness and justice must be manifested by the people in authority. If the law is 'unlawful' and 'unjust', then there must be a strong moral attachment to amend or change that piece of legislation or policies. Take the Internal Security Act, the Police Act, the Official Secret Act, the University and College Act, Printing and Presses Act, Sedition Act and a whole lot more of laws that need to be reviewed, amended and abolished altogether.

Can we say that these laws are justified and fair? Can we say that these laws reflects the views of the people and the freedom stipulated in the constitution? My gut feeling says 'NO'. Are we trying to say that the police officer hoisted by the people want to be popular? Or that the state assemblymen arrested in Malacca for what the Chief Minister of Malacca dubbed as 'mencuri besi buruk' wanted to be popular?

In the past one month, many people have asked me, what do I think about YB Lim Jack Wong's case and the case affecting the other YBs i.e. YB Sim Tong Him and YB Goh Leong San who are all arrested together. I thought of writing an article about it but I was just so malas to pen down my opinion and views. Some are influence by the writings in Sin Chew (or Nan Yang) recently by a fellow member of the Malacca Bar and a close friend of mine, Mr. Chia Cheng Wee who opined that their act were in short foolish and set a bad example or precedent to members of the public to take the law into their own hands.

As such, this compel me to write a short note here to state my mind the need for some clarification about the acts of our YBs. There is a fine distinction between the law and morality. My opinion is simple, that the YBs owed a higher degree of morality and obligation. And that higher degree of morality and obligation outweigh that of the strict nature of the law. The law must be read in tandem and togetherness with the voice and the majority of the people. That is what we called democracy or makkal sakti.

There is indeed a higher degree of morality attached to the Malacca state assemblymen to do what's best and right for the people. The people complain to them and the abandoned project was laying for almost a year and yet nothing was done to cover the area by the authorities or the private company. Now that posed a significant danger for everybody especially school children walking pass. Worst still as school children the idea of danger is never registered in their mind. As such, that justified the acts of the state assemblymen to do what is morally right. Are we to wait for somebody to just fall and injured himself or worst still, died and then quickly do something about it. Who are we to blame or point our finger then?

The second argument of course is whether an offence has being committed by our YBs. In all criminal law every law student will know the fact that for an offence to be established, all elements of crime must be satisfied i.e. the guilty act (actus reus) and the guilty mind (means rea).

The prosecution will definitely have a hard time establishing an offence because of the lacking of the intention stated under the Penal Code. Compare that to the then OCPD of Melaka Tengah (whom I believe was promoted) who did intentionally kick the state assemblyman, YB Lim Jack Wong (ADUN Kesidang), coupled with the knowledge that his act will cause hurt inflicted to YB has committed an offence under the law. In what law or morality give the right to that OCPD to do likewise. That exist a criminal element that must be investigated and prosecuted by those in authority.

It is also in my view that the rakyat must be proactive to correct the wrong. That is why the Criminal Procedure Code gives power to the public to make a citizen arrest. The question of course is what are the ways and the channels of complaint. Do not do it yourself or take the law into your own hand but take charge of the complaint and report to us or any government agencies.

Please read here and here on YB Lim's arrest.

Now back to Johan's article which he says "WATCHING the images of a senior police officer being hoisted on to the shoulders of the so-called "Cheras barricade breakers" saddened me". To my mind, that police officer did what is best for the people that is to make the law (Police Act) practical to the people so that no untoward incident happened. There is no anarchy or public disorder if emotions are controlled and the voice of the people are heard. In fact the only wrong committed is that the slow paced by the government and the ministry concerned to intervene. Should the Minister acted accordingly and immediately, the problem would have been solved earlier.

So Johan Jaafar, though I respect your view and that may be the conventional view, maybe you should just explore the beauty of morality.

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Johan Jaaffar: The law and the art of being popular

Saturday, 31 May 2008 09:19am

©The New Straits Times (Used by permission) by Johan Jaaffar WATCHING the images of a senior police officer being hoisted on to the shoulders of the so-called "Cheras barricade breakers" saddened me. According to reports, the barricade was demolished "peacefully" by the crowd in the presence of policemen watching "to maintain peace and order". I wonder if anyone questions how many laws have been broken by the boisterous yet agitated crowd or whether the gathering is even allowed by the Police Act. Should anyone care to listen to "the other side" -- the highway concessionaire Grand Saga who maintained that the barricade was erected "on an indisputable portion of the concession area"? I have no love for Grand Saga and I empathise with the residents if at all the barricade had caused so much misery to them. But I believe we have to be fair to all parties -- the people affected and to the company, too. No one is above the law. That is the principle that we have upheld all these years. That is the Malaysian way of doing things. If we take the law into our own hands, we are heading towards anarchy. If you have been following media reports in Taiwan and Hong Kong over the Cheras issue, you will understand how much it has dented our reputation. There is another worrying element to the reports -- hints of racism. Why, I wonder, has a matter pertaining to the setting up of a barricade protested by residents of all races become a racial matter? The way I look at it, the country's image is one thing, but the maintenance of law and order is another. It is easy for anyone to say that they stand by the people on matters like this. Toll highways have never been popular with Malaysians, anyway. It hurts the pocket. But people have no choice but to pay to go places. Shall we do away with tolls on all our highways? An enticing prospect needless to say, and indeed one that will get wholehearted support from everyone, except of course the operators of those highways. But does anyone in his or her mood of irrational exuberance remember the matters pertaining to concession agreements, the funding and its necessity? In the name of popularity, should the present government pronounce as null and void all those concession agreements signed so far? Taking a populist approach is easy. Side with the people over everything. One can never go wrong. Just give the people what the people want. But things are not that simple. So the only logical thing to do is play the underdog. It is always the Goliaths over the Davids. The little people are victimised by "the system". The Big Guys motivated by nothing but greed make life miserable for the masses. These people make tons of money while the highway users endure ever increasing rates. In an economic system like ours, there is no law against making money. Playing to the gallery is good politics. Just imagine how one becomes popular siding with hawkers and every conceivable petty trader who has no regard whatsoever for the law, safety or cleanliness. Stand by them, and presto, you're the folk hero. Some of today's MPs and state representatives were social activists before. But they, too, are on the side of law and order now. Behaving like saviours of the little people is one thing, but the burden of being elected representatives is another. There are members of parliament and state representatives who would love to label themselves as orang yang ditakuti (the dreaded ones). They want the image of a no-nonsense, hard talker and a gunslinger, ever willing to spray bullets on hesitant and bumbling politicians. They build their notoriety on acting tough. Some even make it a point to provoke, condemn and humiliate others. The Dewan Rakyat sadly has become one big arena for bertikam lidah (sabre rattling). Some of the scenes are not too pleasant. Harsh words are exchanged and proprieties take a beating. Do we have to go to that? Do we have to witness our politicians behaving like spoilt schoolchildren in the so-called Dewan yang mulia? Why can't they just get into the business of representing the people? They have tons of problems to begin with. The people want their representatives to bring forth their grouses, argue their cases and help them find ways to improve their livelihoods. Why can't they do just that, rather than perfecting the art of throwing mud at each other? Why can't they be like what they are supposed to be -- ahli-ahli yang berhormat (the respectable ones)? I fear the day when fist fights will actually happen in the Dewan Rakyat. Good, rational arguments win hearts and minds. Take the case of Datuk Ibrahim Ali's maiden speech in the recent sitting. He has been called many names. But he gave one of the best speeches at the Dewan Rakyat. He has nothing new to sell, actually. But it was his calmness, research and eloquence that won the day. If only there are more like him than the noisy interrupters and perennial table bangers. Why, I wonder, do parliamentarians need to waste time on semantics and dubious rules of the House or lambasting fellow MPs when they should be making suggestions and contributing ideas? That will differentiate the men and women from the boys and girls. Brute force without wisdom fails by its own weight, someone famously said. Little wonder we forget most of the questions and statements made in Parliament. But is our society being reflected in what happens at the Dewan Rakyat today? We need a responsible government, and equally responsible representatives to play the role of check and balance. The very people who were elected on the mantra that the ruling government at the time was ignoring and disrespectful to the rakyat, practising cronyism and succumbing to racial politics, must now prove themselves as the harbinger of change. They must now show the way for the betterment of the people, to ensure the emergence of a civil society and more importantly to respect the law. That applies even to the supporters of the demolition of the Cheras barricade among them. They must also work together to heal a divided nation. Is that too much to ask from our Yang Berhormat?