Tag: individual rights

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Politics & government Society

[2580] Opposing the proposed SABM-HAKAM Social Inclusion Act

Saya Anak Bangsa Malaysia (SABM) and the National Human Rights Society (HAKAM) have proposed to introduce something called the Social Inclusion Act.[1] The general idea behind the proposal is noble but if this act somehow finds itself in a queue for debate in the Parliament (which I think is unlikely given how private member bills are typically ignored in favor of government-sponsored bills), the act does give too much power to a commission that it seeks to establish.

I am against the act, at least in its current form.

The proposed commission has too much power because its functions have been defined so broadly and the act grants the commission the ability to implement its own recommendation.

Furthermore, the commission can also compel the government, federal or state, to implement its welfare program if the commission believes such program is warranted. In other words, it can dictate government policy, which I think is unreasonable. It transfers debate on such social policy which can be controversial from the public sphere to within the commission’s four walls. The commission can also exclude members of the public from participating in any discussion held by the commission. So, not only it transfer the venue of debate from the public sphere to the private space funded with public money and public authority (yes, it can compel anybody to appear before the commission, which I find odd and coercive, but this is a small issue), there is transparency worry.

In clearer terms, I find the non-transparency as unreasonable as the commission can compel the government to implement its suggestions whatever the commission sees fit, notwithstanding what other laws state that may curb the commission’s powers. There is too much authoritarianism in that. I do hope, if the proposed Social Inclusion Act is taken up in the Parliament and eventually passed, there are such laws that limit the powers of the commission.

Now, what are the functions that I find too wide?

The commission has the power to develop social inclusion policies and also, the power to implement it. The exact boundary of such policies is unclear but it can be so extensive that it may require a whole ministry or two to do it. Social inclusion, based on what are listed as the functions of the commission, includes but not limited to reduction of real poverty, reduction of income inequality, provision of social safety net and prescription of intervention model. I wrote the functions of the commission are not limited as to those stated in the act because social inclusion can mean a lot of thing and it is ill-defined.

It is ill-defined because it is based on the definition of marginalization, which in turn is defined as the exclusion of a person or a community’s economic, social and political rights that prevents the person or the group from realizing their full potential and from participating fully in society.

Those rights are controversial, if you understand the existence of negative and positive rights. Given the individuals behind Anak Bangsa Malaysia, I think I will quickly disagree with a number of ideas that they may consider as rights. I subscribe to negative individual rights and more often than not, I am oppose to positive rights, which compel others to intervene another person’s life to help achieve the latter’s potential. In doing so, it is a violation of the former’s individual rights, which demand the former to not be coerced into doing something.

Define these rights as positive rights, then the size and role of government will quickly expand at the expense of individual liberty.

I think the act can be improved by making it more transparent and more inclusive in its decision making (which is ironic because this is a so-called Social Inclusion Act but its discussion and decision can be exclusive) by allowing the commission to recommend first, and then have the Parliament debates and then on approve or reject the recommendation. If the Parliament approves it, only then the commission should be allowed to implement directly or compel the necessary existing ministry to implement the recommendations. Or better, let the commission be the implementer of whatever relevant laws the Parliament proposes and passes. Take away the recommendation power of the commission.

I think having the lever at the parliamentary level is important at guaranteeing a more inclusive act. It also puts a bump on effort to expand the role of government. The membership of the proposed council can be biased and unrepresentative of the wider society. Having the Parliament has the decision maker partly solves the problem of bias and representation.

Here are some example of excessiveness of power the proposed commission has. Consider this: the power to introduce a social safety net is entirely in the hands of the commission. Such introduce is a major policy, require major expenditure and in the US, the expansion of public insurance, or the Obamacare, was a major public debate. It will be outrageous to give the commission such power. That decision should be decided by both the Cabinet and the Parliament and the wider Malaysian public, not the Commission exclusively.

Consider this also, the stated function of the commission is to reduce income inequality. This potentially include tweaking with the taxation system. To provide the commission with such power is too much.

So, I reject the act. I see the current proposal as a way to ram through certain way of thinking about social issues without check and balance. It is a request for free pass to expand the role of government, without accountability.

Mohd Hafiz Noor Shams. Some rights reserved Mohd Hafiz Noor Shams. Some rights reserved Mohd Hafiz Noor Shams. Some rights reserved
[1] — An Act to provide for the development and implementation of an integrated plan of action to address serious marginalization within Malaysian society [Social Inclusion Act 2012. SABM, HAKAM. Extracted August 17 2012]

Categories
Liberty Politics & government

[2467] Why the rush?

I had listened to Prime Minister Najib Razak’s Malaysia Day address with skepticism. Part of the skepticism came after noticing all the qualifications made by the prime minister in the same speech. The so-called Political Transformation Program does not look so bold if one reads the fine print.

As we have learned in recent days, the actual reform does not meet the high expectations set by the prime minister himself. The manner at which the Peaceful Assembly Bill 2011 was rushed through did little to alleviate the skepticism.

In these days of skepticism, only actions command confidence. The nearly six years of the Abdullah administration justifies that attitude. The bravado of Parti Keadilan Rakyat only adds to the justification of skepticism. Indeed, political skepticism against all sides is a sign of maturity of ordinary voters.

While the scent of skepticism was strong, not all shared it. Not all ordinary voters are seasoned political observers after all. Many young Malaysians celebrated the announced reforms as if reform had already happened. And then there are other not-so-young Malaysians who willingly assume things in good faith. Because of this, the Najib administration gained some immediate political capital.

That was about three months ago.

However significant the political capital was, time is eroding it. The power of words can last only so long. The longer it goes unsupported by action, the less credible it becomes. Words are cheap. In order to arrest the skepticism and to ensure that the liberalization exercise will translate into votes for Barisan Nasional, the promised changes will have to be instituted before the next federal election. Action is required, hence the rushing of the Bill.

Within a week, the Bill was read twice. Members of Parliament were expected to read the Bill thoroughly, consult experts as well as their constituents and then debate it intelligently within the span of a few days. That was nothing less than an ambush on the liberal camp.

The ungodly rush suggests something else as well: the federal election is coming sooner rather than later. It suggests the tentative election date has been set and all Bills need to be passed before that deadline. If that is indeed the case, then the election presents a perverse incentive for the government to act based on a misunderstanding of criticism against the previous illiberal laws.

It must be highlighted that the criticism is against the spirit of the previous laws, and not against the laws per se. With the Peaceful Assembly Bill retaining the old illiberal spirit, it is no different from the old laws. To cite another example relating back to the Malaysia Day speech, the replacement of the Internal Security Act will still grant the government the power to detain a person without trial. Yet, the main criticism against the ISA was exactly the detention without trial feature. So, what exactly will the substantive change be?

One gets the impression that the government thinks all that is wrong is the names and the initials of a certain set of laws. Change the names and the initials to something more cheery and they expect the criticism will go away. That is a gross misunderstanding.

Based on that, the government would think that rushing the Peaceful Assembly Bill and other related ones will win it votes. No, it will not.

A substantive-minded government would take a more measured pace by making the Bill and others to come go through a thorough deliberative process. That possibly means pushing the next election as far as possible into the future and holding it only after a much improved Bill is ready for passing.

The reverse — setting the election date first and then targeting to pass the Bills before that date — will result in farcical Bills.

A rushed farcical Bill benefits no one. The voters will see through the farce and BN will not win any extra votes from it. BN in fact would lose votes because new voters and those who assumed good faith would think the ruling coalition has taken them for fools. Meanwhile, Malaysians will not see any improvement in their civil liberties.

In the end, what was the point of rushing it?

Mohd Hafiz Noor Shams. Some rights reserved Mohd Hafiz Noor Shams. Some rights reserved Mohd Hafiz Noor Shams. Some rights reserved
First published in The Malaysian Insider on December 2 2011.

Categories
Liberty Politics & government

[2430] Let us inspect the qualifications first

Prime Minister Najib Razak has just delivered a much awaited speech.[1] It is much awaited because it was hyped up by the media. The speech did contain important announcement of intentions but the first 15 minutes were full of fluff.

The substance came later in the second half of the speech. He said his administration intends to repeal all declarations of emergency still in force. These declarations are frequently cited as anti-liberty and as means to circumvent more rigorous laws. He mentioned that the necessary bills will be sent to the Parliament for consideration.

My first reaction was one of excitement. Yet, questions linger. Will we see the return of local elections? There is no explicit mention of that. There are other questions in my mind that require answers.

With that realization, I take a skeptical position. This skepticism grew as the PM read more of his speech.

The proposed abolition of the Internal Security Act for instance should be a reason for liberals to cheer but two new laws are being proposed to replace the ISA. I fear that this may be merely a renaming exercise, due to the qualifications the PM included in his speech.

Another is the annual renewal of permit for the press. The proposal on the table is to replace that mechanism with a system where a license will only be canceled until it is canceled by the government. Does this mean the government will have the discretionary power to cancel a license just like that? That is not much better than the current setup. I prefer a renewal system where the permit lasts more than 5 years beyond typical election cycle to limit political manipulation by the government, be it one led by Barisan Nasional, Pakatan Rakyat or anybody for that matter. It limits discretionary power. The newly proposed system increases opportunity for discretion. The problem has always been the exercise of discretionary power, not the permit system per se.

These qualifications are important because these qualifications will be the true measure of sincerity of this announcement and of any effort at liberalization.

The Prime Minister and his administration deserve a nod for this liberalization plan but let us inspect the qualifications first before applauding the administration.

And I will believe it, after I see it finally done.

Mohd Hafiz Noor Shams. Some rights reservedMohd Hafiz Noor Shams. Some rights reservedMohd Hafiz Noor Shams. Some rights reserved

[1] — [Najib Razak. Perutusan Hari Malaysia. Office of the Prime Minister of Malaysia. September 15 2011]

Categories
Liberty

[2376] Suaram, a blind believer of the Universal Declaration of Human Rights

The way Suaram reasoned its position on drinking and smoking ban shocked me.

According to the group’s coordinator, the Universal Declaration of Human Rights does not explicitly mention the consumption of alcohol and tobacco as a human right but it does mention detention without trial is a violation. Because of that, Suaram supports drinking and smoking ban if the majority supports it. And because of the Declaration as well, the group does not support detention without trial.[1]

For a group that fancies itself as a human rights group, I expect more than an appeal to the Declaration. Any serious human rights group needs to have a more developed view on rights. Several Pakatan Rakyat politicians who are also members of Suaram have rightly condemned the group’s view as being simplistic.[2] (Now, I am aware that these politicians may be inconsistent with their views with regards to what I am about to share but let us ignore that at the moment for I want to focus on Suaram).

Suaram’s view will not stand any liberal test. Consider this appalling case: if detention without trial was not mentioned in the Declaration, then Suaram would have supported detention without trial. There is no two-way about it. The Declaration is the document of reference for Suaram after all. Or maybe, I should just say that it is the view of the coordinator.

Such is the inadequacy of Suaram or the coordinator’s reasoning.

A more respectable human rights group would have derived its position from the first principle instead.

I want to say this rather forcefully because I think the point on first principle is crucial.

Any libertarian will reject the Universal Declaration of Human Rights. The rejection is due to the categorization of liberties and rights into negative and positive.

Negative liberties and rights refer to absence of interference by others to a person action that does not necessarily or dangerously affect others (after reading Nozick’s State, Anarchy and Utopia, I have a little bit trouble defining this but you know what I mean). Freedom of expression is part of negative liberties.

Positive liberties and rights refer to obligation by others to aid the person to achieve the person’s positive rights. The supposedly right to employment is an example of negative rights.

Libertarians reject positive liberties. Only negative liberties are accepted and these negative liberties are simply referred to as individual rights. Libertarians, or maybe at least me, understand negative liberties as individual liberties. Because the Declaration contains positive liberties, libertarians reject the Declaration.

This is my first principle: negative liberties. All rights originate from those liberties. Most of my positions are derived from that first principle. And you can see how my position on drinking and smoking come from; it comes from that first principle of negative liberties.

Drinking and smoking ban interferes with individual action as defined above. Hence, libertarians reject the ban, whether or not it is mentioned in the Declaration.

(If there is conflict of rights there, then Coase theorem is there to save the day. If it involves private property, then the owner’s words are supreme.)

But the libertarian view does not matter as much here.  What matters is the first principle. You can see where the libertarian — my — position on drinking and smoking ban is derived from. Suaram lacks such rigorous reasoning.

Another angle demonstrating the inadequacy of Suaram’s view is this: if all liberties and rights are derived from the Declaration as understood by Suaram, then the Declaration is utterly inadequate to function as the document of reference in a liberal society. Many negative liberties simply would not exist and that is an unpalatable scenario for any liberal, and I use the term liberal here in the widest of all sense.

Now, here is something more insidious than naïve thinking.

There are many negative liberties unmentioned by the Declaration. Now, left-leaning individuals and entities claim to embrace a more comprehensive view of liberty. They accept both negative and positive liberties and rights.  The crucial point is that a left-leaning entity accepts negative liberties as well, notwithstanding the areas where positive rights prevail over the negative ones. It is safe to say that any person who confesses belief in liberty however it is defined at least subscribes to negative liberties.

For the negative liberties unmentioned by the Declaration, by deduction, Suaram believes the majority has the power to decide whether a person should be stripped of his or her negative liberty.

The discretionary leeway is despicable for one reason: it is the tyranny of the majority. For a self-proclaimed human rights group to see no wrong in tyranny of the majority, that is shockingly disappointing.

Mohd Hafiz Noor Shams. Some rights reserved Mohd Hafiz Noor Shams. Some rights reserved Mohd Hafiz Noor Shams. Some rights reserved

[1] — KUALA LUMPUR, June 7 — A human rights group today will support a ban on alcohol consumption or smoking should the majority of Malaysians favour it.

Suara Rakyat Malaysia (Suaram) said, however, that the Internal Security Act (ISA), which allows for detention without trial, was exempt from public opinion.

“The right to drink and the right to smoke is not explicitly spelled out in the UDHR (United Nations’ Universal Declaration of Human Rights), but the right to fair trial is,” Suaram coordinator Hasbeemasputra Abu Bakar told The Malaysian Insider today.

In a statement sent last night, Hasbeemasputra said “the state has the responsibility to make laws that regulate society and has a duty to ensure the wellbeing of the people, and gazetting no-smoking zones helps to fulfil these two roles.”

When asked why Suaram now supported the smoking ban in Malacca but opposed the ISA, the human rights activist insisted that the ISA ran contrary to the UDHR. [Boo Su-Lyn. Alcohol, smoking ban if majority wants it, says Suaram. The Malaysian Insider. June 7 2011]

[2] — SHAH ALAM, June 7 — Two members of Suara Rakyat Malaysia (Suaram) rejected today the human rights group’s backing of bans on alcohol consumption or smoking as long as a majority favour it. [Boo Su-Lyn. Pakatan reps slam ”˜simplistic’ Suaram over alcohol, smoking bans. The Malaysian Insider. June 7 2011]

Categories
Liberty Politics & government Society

[2365] Should action be taken against Utusan Malaysia? A libertarian perspective

Utusan Malaysia recently alleged that Malaysian Christian heads were conspiring to make Christianity the official religion of Malaysia. The conservative Malay daily cited two blogs of questionable credibility to back its front-page report. For a society highly conscious of  ethnicity and religion issues, the report caused uproar and tension between various communities.

Assuming the allegation is false which is likely the case, should action be taken against Utusan Malaysia for reporting it and in effect, spreading falsehood?

Our incentive system is imperfect to say the least. It is not at all surprising to have somebody spreading falsehood, lying or deceiving someone else to get what he or she wants in general. To complicate the matter, those acts might not by wrong all the times. There are times when those acts might be necessary to protect the innocents.

Even when those acts are wrong, unilateral public action through state authority might be out of the question with the principle of free speech in place, along with other typical individual rights.

Individual rights do not include the legitimization of fraud. Any action based on lies and falsehood that adversely affects individual rights cannot be condoned by the state or any authority invested with the powers to protect individual rights. It just cannot be let go off the hook.

One example is this: in a transaction, one party lies about the state of a good for sale to a person. If the person bought the good while supplied with false information, then the lying seller has obtained the money wrongly, with money being a private property of the purchaser. The right to private property is an individual right and the transaction based on deceit violates that right. The lying seller has to be punished by the state — unilaterally — since the prime rationale of the establishment of the state is the protection of individual rights according. The punishment is important not just for the sake of principle, but also for a very pragmatic reason. It is imposes a cost on such act and so discourages such fraud from recurring in the future.

Within the context of Utusan Malaysia and its recent controversial report, was there any violation of rights?

I cannot answer it in the affirmative. Therefore, I cannot to support unilateral state action against Utusan Malaysia. The best I can come up with is that the falsehood affects reputation. Yet, individual rights do not include reputation.

This of course does not mean individuals involved in the reporting — meaning the one reported involved the conspiracy — cannot seek redress against the Malay daily. Conflicts between private parties have always happened and a trustworthy third party can and has always been appointed to resolve the conflicts. The third party here is usually the state. The third party’s judgment then is enforced to resolve the conflict as civil as possible.

In the case of interest, the group accused by the Malay daily can bring their grouse to the courts. If Utusan Malaysia did spread falsehood and that the falsehood adversely affected the reputation of the group, then the daily should be compelled to compensate the group or be fined. The fate of the two bloggers should be the same as the Malay daily.

I like this route the best because it is clean. It makes the issue as a conflict between two private parties and makes the concern of unilateral state action against Utusan Malaysia merely academic if indeed Utusan Malaysia did spread falsehood (which, again, I do not doubt that is the case).

By making it private, it does not mean that there is no public interest in the case. There is but it is hard if not impossible to account for that interest and its very public effect without resorting to discretion.

If unilateral state action has to be taken — which I will contest its legitimacy — there may be a mechanism for that. Robert Nozick’s Anarchy, State and Utopia may have a mechanism that can be modified to justify unilateral state action against Utusan Malaysia. Be warned that I am taking the idea in a very restricted sense. Nozick is concerned with a much larger issue than that which I am focusing on now.

Early in the book, Nozick demonstrates how various insurance and compensation arrangements will address threats and actual transgressions of rights. Insurance and compensation arrangements here are simply different terms used for protection provided by an entity, which can be the state, a private security firm, a gangster group or other entities capable of provide that service. Meanwhile, threat is not simply some kind of warning or a menacing declaration that something will be done if something else is not done. Rather, it is the possibility of something bad happening. The chances of a pedestrian being hit accidentally by a car is one of such threats. The chances of a person makes good of his threat to break your leg is another example of such threats.

Nozick describes how a general open threat creates fear among the threatened. Depending on the credibility of threats and the level as well as the spread of fear the threats create, it will disrupt day-to-day activities of the person or even the society. In order words, there are costs imposed on society by the threats, regardless of realization of the threats.

I think this parallels concerns regarding lies and falsehood. It gives the qualification why some lies and falsehood should be punished. When lies and falsehood creates widespread public anxiety, then there is a case for unilateral state punishment. Under this line of thinking, the priority is fear minimization, or in the parlance of Malaysian political discourse, sedition or incitation of hatred. In the end, Utusan Malaysia clearly must be punished, if this method is adopted.

The question is how widespread before punitive unilateral state action should be taken?

This may require some kind of discretionary powers, which like any discretionary powers, are open to abuse.

The need of discretion is one reason why I do not like this method, on top of the fact it does not follow from the first principle aimed at the protection of individual rights.

Discretion tends to create dissatisfactory judgment. It will inevitably be inconsistent and in the end, ruin the reputation of the third party wielding the power to punish. Discretionary powers will lead to abuse.

The wielding and the exercise of the discretionary powers have caused troubles in the past. Some newspapers have been punished for publishing controversial material while others have been let go. Indeed, Utusan Malaysia has been let go off the hook by the government despite its controversial report of unverified truth. If reported by other newspapers less friendly to the government, that newspapers would have been punished.

So, long story short, no to unilateral state action against Utusan Malaysia but yes to making the case a private conflict between two parties involved.