For Thinking Liberally, by Wan Saiful Wan Jan first published by The Star 28 Feb 2017

On paper Malaysia has quite a good framework to regulate businesses in Malaysia. The Malaysian Productivity Corporation (MPC) introduced a framework called the Regulatory Impact Analysis (RIA), which is defined as a process of systematically identifying and assessing the expected effects of regulatory proposals.

The MPC on their website acknowledges that despite there being a need for regulations to ensure policy objectives are achieved, regulations can have widespread and differing impacts. Some regulations will produce good and visible outcomes, while others will have hidden and unexpected consequences.

Consultation is an important element of RIA. The MPC says “any proposed new regulation or changes to regulation will involve consultation with relevant stakeholders, including the main parties affected by the proposal: business, NGOs, the community, regulators, and other government agencies”.

Having good consultation has become even more important today, after the World Trade Organisation’s (WTO) Trade Facilitation Agreement entered into force last week on 22 February 2017. With Malaysia being a member of the WTO, the agreement is now binding on us.

Strictly speaking the agreement affects a pretty specific part of trade. But I will not go into the details here. The important thing is, Article 2 of the agreement says member countries must consult stakeholders before regulations are introduced or changed.

Now consultation is not merely a good practice, but a legal obligation.

However I worry if the little Napoleons in our bureaucracy will damage our country. To illustrate, let me tell you my most recent personal experience with a government agency.

In early January this year, the Ministry of Health invited stakeholder groups to discuss a new regulation. I attended two of those meetings. The first was for civil society organisations and the second for industry. What I observed, and how I was personally treated by the officials, were astonishing.

At the beginning of the first meeting with CSOs, the officials told me to switch off my phone even though I told them that I use my smartphone to take notes in meetings. But throughout the meeting, other delegates, including the Chairperson herself, openly used their phones and tablets. It took me a while to figure out why, but I then realised that everybody else in the room were friends of the officials there. They didn’t know me, so they feared that I would snap photos for circulation. It seems to me that the others are treated favourably because they were seen as friendly to the agency.

The discriminatory attitude was clearer if I compare the behaviour of the chairperson in that CSO meeting with her behaviour in the subsequent meeting with industry. In the meeting with friendly CSOs we spent almost four hours to go through the draft new legislation line by line. We spent a lot of time thinking through the proper words to use in the law, and we even suggested specific edits to the text. The chairperson actively encouraged the friendly CSOs to voice out suggestions.

In the meeting with industry her attitude was completely different. She was not interested in verbal inputs from industry representatives, insisting instead that all comments must be made in writing. Her attitude was unwelcoming, bossy, and the only thing that came to my head was that she wanted the delegates to leave her “fiefdom” as soon as possible.

At the industry meeting, I asked the chairperson if the draft is already final. She insisted that the regulation they drafted is from government policy and that not much change will be possible. I suggested to her that she should show the same courtesy to industry the way she was very nice to her CSO friends just two days prior. That invited her wrath more than anything else.

I am intentionally not disclosing here the actual content of the discussion because at the first meeting they made me sign a Non-Disclosure Agreement. No such form was distributed at the second meeting, again showing how inconsistent the agency’s behaviour is. But there is no real need to disclose the content of the meetings in this article anyway because my focus here is the method and the lack of professionalism in conducting a consultation, not the proposed regulation itself. (The proposed regulation does have some good elements, actually)

I later learnt that stricter regulation of the concerned industry has been a personal crusade of quite a few officials in that agency, especially the chairperson. When officials intentionally confuse their government jobs as personal fiefdoms where they can behave like a God, that is of course the attitude that we get. They don’t care if their appalling behaviour negatively affects how investors view Malaysia. They couldn’t be bothered to show any respect to investors. But they will give preferential treatments to their friends and cronies.

When some government officials behave like little Napoleons, treating some stakeholders as chummy friends and behaving with hostility against others, how can we expect consultations to be done professionally and objectively? Their irresponsible and short-sighted behaviour creates doubt about the value of government consultations.

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