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Civil disobedience cannot rule the law |
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Sunday, 11 December 2011 |
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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).
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Judicial diversity creates confidence |
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Sunday, 13 November 2011 |
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The Sunday Star
Roger Tan
 Holding court: Former Chief Justice Tan Sri Zaki Azmi (front row, second from left) chairing a meeting of judges from Kuala Lumpur and Shah Alam. The Judicial Appointments Commission should always encourage a diverse judiciary which is more representative of the make-up of our country. — Bernama
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”.
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