IN response to the riposte by Hafiz Hassan and as a matter of general academic discussion, the issue should be deliberated with an open mind, putting any political differences behind, by letting the executive performing their part of duties and responsibilities within the boundaries of rule of law. I opined that when the polemic of the legality of constitutional measures especially when actions by the head of state are under question, then it is off our hands, hence allowing the highest court of the country to decide.

In the meantime, let us revisit the definition and role of law that law teachers seem to preach to law students and future legal practitioners during the early years of law school with a view of looking at the bigger picture of the issue. Before moving on, it is important to differentiate what constitutes politics as compared to politicking. By definition, politics is the study of how a country is governed. Politicking on the other hand refers to the tactics needed to acquire or retain the power of politics itself. This is with intention of an introduction not as a defensive statement but rather as a guidance in following my discussion.

In a democratic country, the doctrine of separation of power popularised by Montesquieu states that there are three main organs of the government, namely executive, judiciary, and legislative. Whilst the executive is responsible for running the country, the legislative assembly is to make laws, and the judiciary is to enforce the law. The independence of these three branches of government enables them to check and balance, thus ensuring there is no abuse of power. This is the fruit of a democratic system i.e., the power by the people, and to the people. The utmost importance is for the government to work within boundaries of rule of law legalised by the existing laws.

Consequently, the nature of law that is being employed is up to the discretion of the executive as authorised by law. What does it mean by law then? According to Hart, law is a combination of primary rules of obligations and secondary rules of recognition. Salmond states “the law may be defined as the body of principles recognised and applied by the state in the administration of justice. John Erskine’s definition of law is the command of a sovereign, containing a common rule of life for his subjects and obliging them to obedience. According to Corley and Reed (1986) law is a body of rules of action or conduct prescribed by controlling authority and having legal binding forces.

Having defined what law is, what function does the law perform in society? In summary, roles of law range from social control, social change, and dispute resolution. Social control is a necessary measure especially in large and diverse societies coupled with the fact that Malaysia has a multi-ethnic, multicultural and multireligious society. A friend of mine from Qatar when visiting a night market in Kuala Lumpur years ago made a good remark on how Malaysians despite ethnic and religious differences could live in harmony. In a modern society where people have different values, beliefs, income, political interests, and opinions there are times whereby the existing laws are not sufficient for social control. Thus, a more robust law is needed. From a regulatory and governance perspective, new types of law for instance in times of pandemic are needed especially when public health issues become a serious national security issue. Therefore, some countries like China initially imposed very strict lockdown measures later resorted to biosecurity laws. However, it is important to note the different ideologies adopted also considering of the type of society and culture, as the same might not be applicable and suitable with our local conditions.

As a social control measure, convictions encourage law-abiding behaviours (Friedman). Next, the role of law is for social change. For instance, the law at times is not suitable to punish attempt suicides but rather a remedial type of approach in regulating suicides. Finally, the role of law is for dispute resolution i.e.to resolve conflicts. In short, the law is needed for social cohesion.

Coming back to the issue of public health as a national security issue considering Covid-19 has left many consequences and tensions faced by the society. From the economic aspects that caused job loss, the rise of unemployment rates, and daily billion loss of economy. Covid-19 witnessed a Malaysian wind of change in the political arena whereby there was a change of government to the current ruling government. As for social aspects, as we adhere to social distancing measures, we also witness increase suicide rates, divorces rates, and domestic violence that led us to worse social chaos.

Looking at how grave our country’s situation is, we felt that Malaysians have suffered enough. Nonetheless, politicians and their supporters keep on pushing their own political interests and motives.

Hence, it is a timely move for a more dynamic approach and strategy of governance, perhaps a mix of command-and-control type of governance with smart regulation. It is of the view that biosecurity law as imposed by China and Australia as a more robust type of governance considering the current public health issue as a deterrence measure that could impose fine to ensure obedience. Furthermore, the other part of the law should be more comprehensive apart from public health should include biohazard, biochemical, possible bioterrorism, biological agents that should protect not just humans but should be extended to animals, plants, food, environment, i.e, biodiversity as a broader scope of protection.  

What is needed and important for now is a call for social cohesion and political solidarity to support whatever the ruling or current government in power to develop the country not to destroy whatever that we have developed all these years especially after gaining independence from Britain in 1957. We must build the country again, we must win and become stronger.

* Noor Dzuhaidah Osman is a senior lecturer of Universiti Sains Islam Malaysia, Faculty of Shariah and Law.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.