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.
|Johan Jaaffar: The law and the art of being popular|
|Saturday, 31 May 2008 09:19am|
©The New Straits Times (Used by permission)
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.
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.