The legitimacy of law

by Zairil Khir Johari
The Malaysian Insider
May 04, 2012

MAY 4 — I don’t know if the government actually noticed, but more than 100,000 people broke the law last Saturday. They did so not only unashamedly, but also proudly and cheerfully.

The Bersih 3.0 rally on April 28 saw what is estimated to be hundreds of thousands of Malaysians gathering at six different locations in Kuala Lumpur before marching towards a single destination point — Dataran Merdeka, or as some temporarily-erected signage labelled it, Tel Aviv.

In case the authorities have forgotten, this constitutes a breach of the newly enacted Peaceful Assembly Act which clearly outlaws “street protests”, legally defined as an “open air assembly which begins with a meeting at a specified place and consists of walking in a mass march or rally for the purpose of objecting to or advancing a particular cause or causes.” Which was exactly what a few hundred thousand of us did.

I point this out because for everything that has happened, no one, especially those on the side of authority, seems to have noticed this technicality. If the authorities did, then they certainly didn’t do anything about it. In fact, the Inspector-General of Police himself has claimed that his officers had been instructed to give way to demonstrators.

Am I to understand that our police will now facilitate law-breaking? Perhaps, if one were to grant them the benefit of the doubt, one could say that they were being pragmatic, or understanding, or merely turning a blind eye. Or perhaps it is simply that there was nothing they could reasonably do because the law made no sense in the first place.

In other words, the legitimacy of this particular legislation now comes into question. Here, I think it is important to distinguish between legality and legitimacy. Legitimacy hinges on popular acceptance, while legality rests solely on conformity and observance of the letter of the law. Just because a law exists doesn’t make it legitimate. After all, Hitler’s systematic subjugation of the Jewish people was for all intents and purposes perfectly legal, yet can we accord legitimacy to his actions?

At the end of the day, governments and laws are considered legitimate only if they rest on the consent of the governed and protect basic rights. Thus, while the banning of street protests under the Peaceful Assembly Act may be legal, the fact that it infringes upon a basic right — that of freedom of assembly, which by the way is constitutionally provided for — unfortunately renders it illegitimate, at least in the eyes of the hundreds of thousands of Malaysians last Saturday.

Some have continued to insist that we shouldn’t have broken the law, that Bersih 3.0 should not have been held at Dataran Merdeka when alternatives such as Stadium Merdeka had been offered. As justification, they point out the incidents of violence that occurred at the tail-end of what was for the most part a peaceful rally.

Yes, some violence erupted, committed by both sides. But the real question is: why did it even have to come to that? Everything would have gone smooth and fine had the authorities simply allowed us to gather at a public square — something which should not require permission in a country with laws that make sense.

Sometimes, the advancement of justice can only be achieved by breaking laws. After all, if everyone obeyed all laws, even if it made no sense and had no popular legitimacy, then change will never happen.

Such a premise may appear to be self-contradictory. It is in fact a recurring one. This very conundrum was once posed to legendary civil rights activist Martin Luther King, Jr, who replied in his 1963 treatise, “Letter from Birmingham Jail”, which states:

One may well ask: “How can you advocate breaking some laws and obeying others?”

The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St Augustine that “an unjust law is no law at all.”

That said, government politicians are right about one thing. Bersih 3.0 had indeed been hijacked. What started off as an event aimed at raising awareness for free and fair elections was by the end hijacked by hundreds of thousands of Malaysians with a variety of causes, from electoral reform to heritage preservation to education and even the environment. Some causes were political, some were not, but what we all had in common was a desire to brave the blaring sun and face the possibility of police action, even if it meant breaking the law, because we were determined to voice out our many frustrations about what is wrong with our country. And any law that prevents people from doing that peacefully has no right to be a law.

As for me, I’ll be damned before I let anyone tell me that I can’t hang out with my friends at our own Independence Square.

  1. #1 by Loh on Friday, 4 May 2012 - 4:10 pm

    ///He (Najib) says rally was an attempt to topple the government, it showed that the groups involved did not respect the gov’t which was elected by the people.///–Malaysiakini

    Najib can also say that rallies in UK show also that the people did not respect the government elected by the people. But we never heard that sort of comment from Prime Ministers of other countries!

    How can a rally topple the government when there is no coup d’etat by the armed forces? Did Najib mean that the rally would call attention to the wrong doings of the government so that the armed forces consider it proper to end his term? Well, if Najib felt that he had done wrongs, he should think about resigning rather than using the police to enforce cover-up.

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