Should the government…?
The most dangerous statement any one could make in a democracy: “The government should…”
I subscribe to the political philosophy of limited government and small government. The former part of the ideals of liberalism; the former a philosophy held by classical liberalism, libertarianism, and conservatism.
In this piece, ‘government’ does not just mean the Prime Minister, the Federal Cabinet, the Chief Minister, the State Ministers, and the State Councillors. That is a narrow interpretation of ‘government’. ‘Government’ here goes beyond who is the government of the day but also encompass the various institutions and agencies under the umbrella of government established by the Federal Constitution, State Constitutions, and the myriad of legislation.
Safeguard Against Tyranny
Governments operate on the basis of availability of laws. Only where there is a law can the government act. If it acts without the law, its actions is may be considered ultra vires (i.e. beyond its powers) and almost anyone may challenge its legality. The Court will then decide whether the action is within the scope or did the government exceeded its authority. There are many case laws. One of which is Generation Products Sdn Bhd vs. Majlis Perbandaran Klang where the Federal Court (Malaysia’s apex court if you do not already know that) reasoned:-
“When it comes to assessing whether the authority has exercised its power for any improper purpose, the motive of exercising the power is irrelevant. Unlike cases where the exercise of power is challenged on grounds of mala fide, when personal spite, animosity, malice, fraud, corruption or dishonesty becomes relevant. In respect of the earlier instance, however, even if the authority has the best of intentions, if its act falls outside the scope of the power conferred upon it, the exercise of power is deemed ultra vires and therefore liable to be declared void.” (Emphasis added).
The object of this in a democracy is to safeguard the citizens and the population from the tyranny of the government. This doctrine also creates a form of certainty – especially by virtue of Art. 74 of the Federal Constitution. With a federal system like Malaysia, who has jurisdiction over what? Where an overlap exist, what mechanisms exist to prevent, mitigate, or address such overlap?
Where do laws come from?
That is why it is the sacred role of the components and members of the Legislature to ensure that bills (laws that are yet to be passed) are thoroughly deliberated during the various stages in the legislative process. Sadly many opt to politicise issues rather than deliberate the pieces of legislation that presents itself before them. Many neglect their dual duties as legislators and vox populi in the august chambers. How do we know this? Just visit the Parliament’s website and go through the Hansard. When they are bickering, what are they bickering about?
For your information, the Hansard of the Parliament of Malaysia is available online – free of charge divided between the Dewan Rakyat and Dewan Negara. The records go as far as September 11, 1959 for the Dewan Rakyat. That, by the way, is the first day of the first session of the first Parliament of Malaya.
While most laws are introduced by members of the administration, i.e. Ministers or Deputy Ministers, the deliberation starts long before the first reading in the Dewan – be it the State Assembly, Dewan Rakyat, or Dewan Negara. Bills are typically drafted by the Attorney General’s Chambers; sometimes private law firms are called in to assist. Why? When the expertise does not exist within the AGC, the government needs to engage another party.
If it is a Government Bill, it needs to be decided by the Cabinet at various stages. At times, there will be consultation sessions with stakeholders. If there were none, this should have been raised in either the Dewan Rakyat or Dewan Negara. Why were stakeholders not consulted? This is a legitimate point which warrants an answer. What constitutes an answer, however, is subject to parliamentary procedures.
Cost of Laws – Monetary and Non-Monetary
When a law is passed, the laws need to be administered by an agency it created or by expanding an existing agency. In either case, there is a ringgit amount tied to it. If the new Act, Enactment, or Ordinance creates a new department, staffing, operational, and logistical costs need to be forked out from government coffers, i.e. the Treasury.
Hence, one questions Parliamentarians should ask during the debate of a Bill is always “how much will this bill cost to implement?” Admittedly I have not checked the Hansard on the frequency of this question.
Besides the ringgit and sen, there is another cost which many fail to embrace when they utter “the government should…” Laws come in many form, but usually it includes penalties for failure to comply. When one is prosecuted under the law, it is not a civil case. That is a criminal case. When convicted, the person is not merely an offender but a criminal.
As Lao Tzu is attributed to say, “The more laws are written, the more criminals are produced.”
Then we will fill our prisons with criminals convicted of newer crimes.
Other philosophers, jurists, academicians, and practitioners would give more arguments against this case. Let me note down the 4th and final point for this note.
When we expect the government to regulate something which common sense could have dictated, we need to agree to surrender our liberties. Liberties, not just rights. If we want the government to take proactive preventive action against terrorism and underage pornography, we must be willing to allow the government to access our communication devices and personal computers. There cannot be an exception. When we want the government to address drunk drivers, we must be willing to surrender our ability to self-regulate and self-control.
Even on the economic and welfare side, the same is true. If we want the government to provide unemployment benefits, we must be willing to adhere to the rules and regulations that comes with it.
Another example, we turn to the National Higher Education Fund Corporation which was created using taxpayers money to make higher education more accessible. Although it is created using taxpayers money – corporate and individual sources alike – it was there as a loan save certain exceptions to encourage graduates with 1st Class honours. Unfortunately, it is plagued by loan defaulters. So to curb the defaulters, extreme measures were introduced amidst the various processes to aid repayment. As a result of mass default, the funds is shrinking. The defaulters have denied the next generation of students the ability to pursue their education. Yet, in the beginning application for the loan is optional and not mandatory.
Being Political Means Participating in the Community
Today many people regard politics as a dirty word. The word politics traces its origin to the Greek word politikos, from politēs ‘citizen,’ from polis ‘city.’ Transliterally, ‘politics’ means ‘about the citizens’.
When one is are disinterested in politics, it basically means one is disinterested in the [wellbeing] of the citizens. Thanks to evolution of communication, politics today brings to mind the idea of partisanship. Being political does not mean taking up a membership card with a political party.
Rather, being political today is participating in the discourses and activities in the communities. Frankly it is impossible to expect a single institution to solve every problem under the world. In all of human history, no government successfully solved every single problem under the sun. Philosophers, economists, specialists, and jurists aim to address them. Yet, since our first recorded government in the 4th millennium BCE (about 6,000 years ago) poverty, hunger, social class, wealth, health, etc remain persisting issues.
Instead of merely expecting the 1% to solve the world’s problems, why don’t we through our interests and communities do something about grave injustices? Doing something does not mean ad hominem attacks through our social media. It means actually going out there and creating the world a better place within our capacities with others.
Until the day we can see humankind consciously break down its barriers and accepts responsibility for both individual and collective indifference, ignorance, arrogance, action, inaction, negligence, and omission, these remain an Utopia with many more left wanting.