'To grow is difficult, to kill is simple' (Part 4)

'FOREIGN AMAH", "foreign drivers", "foreign gardeners", "foreign professionals" and the like are now an established socio- cultural- religious- economic institution in Brunei.

b(i) It is inevitable that one is forced to help others to tide over their labour problems when they have been in agony awaiting indefinitely for approvals to their labour applications, the adverse effect of those deleterious bureaucratic elements. To us this situation is similar to the advice of the Hadith on starvation, the tipping point, which forces a person to steal, but he/she not to be summarily punished according to the Syariah. (His starvation may be due to the state's failure to provide food or jobs). This Hadith is reinforced by the Divine Advice that during a life threatening emergency, haram food can be consumed. (Surah Al-Baqarah 2: Verse 173).

b (ii) In seeking Justice and Equitable treatment for those bureaucratic victims, we respectfully invite the attention of those bureaucrats to the early history of the Islamic judicial system founded on the Divine Advice in Verse 173 of Surah Al Baqarah. (Always bearing in mind that no serious, diligent, self-reliant entrepreneurs who want to start their livelihood, raise families would ever deliberately want to mar, tarnish their clean reputation and risk their cash by committing any offences and having to undergo the pains and anxieties of going in and out of the court.)

The historical case is as follows:

It is related that in the year of the famine in Arabia, a woman who had been married informed the Caliph Sayyidina Omar that she was pregnant as a result of zina (adultery) and asked him to impose the punishment of stoning on her. Sayyidina Ali looked into the case to find the reasons which caused the woman to commit the offence. He found that the woman had sexual intercourse not willingly but because she was in a state of extreme hunger and thirst. At that time when she was in that state she met a man who had milk with him and she asked him to give her a little of the milk. The man at first refused to give the milk but after her entreaties, he agreed to give her some milk if she agreed to have sexual intercourse with him. She had to agree.

After hearing the plea of the woman, Sayyidina Ali relied on the verse of the Holy Quran to the effect: (Al Baqarah: 2 Verse:173!)!

"But if one is forced by necessity without willful disobedience nor transgressing the limits than he is guiltless. For Allah is Oft-Forgiving. Most Merciful." Sayyidina Omar accepted the view of Sayyidina Ali and freed the woman as she had committed the offence under duress and her when she was in a state of extreme hunger and thirst. (Ibn Qayyim al-Jauziah al-Hukumiyyah: p79). Source: "Islam and Justice" edited by Aidit bin Hj Ghazali.

b(iii) By adducing the above Islamic judicial decision based on Divine Advice, (and the Hadith mentioned in b(i) we hope we have an objective rational ground in our attempt to unravel the tussle between the trials of the Fact and the Immigration Act; and between the Divine Advice and the relevant Hadiths, and the judicial decision of our learned mortals.

The Fact being those bureaucratic delays, inefficiencies, lack of empathy and unaccountability. The combination of these destructive factors form a solid duress which cause mental pain and threatens the success and hence the livelihood of the entrepreneur and his family.The fears of being a bankrupt and being poor is ruinous to him and his family and not good for the country.

Hence those Hadiths on the danger of being poor and begging. Bureaucratic delays, inefficiencies are very painful to the entrepreneurs, particularly to the fledging ones. Speed is life. Time is money. Delays cause bankruptcies. Prof Jeffrey Sachs says: "In a developed world, time is money. In a developing world, time is losing lives." (His interview on Al-Jazeera TV, September 15, 2007).



Thus in order not to reach the tipping point of being ruined by those bureaucratic faults and shortcomings, the entrepreneur is thus under extreme duress to save his business by being forced to seek temporary help from his immediately family by using the family's foreign workers.

After all it is a common practice that employers ask their foreign workers to help their families, friends particularly so during socio-religious occasions, and the gotong-royong activities.

Thus the position is: under this extreme duress caused by the bureaucratic own fault and failure, is the Law then "blind" to the entreprenuer's extreme duress? Is the Law outdated? Is the Law reasonable? The Law is certainly outdated. The Law is "blind" in a sense that it is being exclusivistly interpreted disregarding the duress factor caused by those bureaucrats' own fault and failure. This is where Informed, Enlightened Reason should rule the Law. This is where that titah on "tardy regulations or processes" and the need to "immediately improve the bureaucrats' outlook" must be immediately heeded to prevent injustice, and to make those bureaucrats accountable, not "hide" behind those outdated, unreasonable Laws and exclusivist interpretations.

b(iv) This debate between the extreme duress and the outdated law shepherds us to a decisive choice of national survival. Which is preferable: to save the business which suffers the bureaucratic duress or to proceed with the exclusivist execution of the outdated law? To grow is difficult, to kill so simple.

Obviously it is preferable to save the entrepreneur/the business, which according to the Hadiths prevents poverty and creates nine tenths of income, that is, the entrepreneur/the business creates wealth and employment which has been the mainstay of the socio-economic policy of the government. Economic progress is of paramount importance:

Pelajaran berekonomi hendaklah dicari,

sebeberapa boleh dipelajari,

bentuk rancangan peta berdiri,

semestinyalah kekal laila johari.

Syair Asli Rajang Hari, by Penyair Diraja Sultan Haji Omar Ali Saifuddien Sa'adul Khairi Waddien.

Our rendering in English may be thus:

Study of economics we must seek,

by whatever means it must be studied,

the shape of the planning erect in reality,

that it be permanent epitomising the supremacy of success.

On the other hand, what has actually happened, the outdated law would not have been exclusivistly activated had there been no extreme bureaucratic duress which forced the entrepreneur to the bureaucratic legal entrapment, that Sound Reason, Informed, Enlightened Outlook, would have acquitted the entrepreneur.

b(v) Thus, the element of extreme duress against the entrepreneur and his business was a very clear fact. What is very obscure, in limbo, is how one interprets the outdated law? This very much depends on whether the law is exclusivistly interpreted clouded by a parochial outlook, or liberally interpreted being enlightened by "improved outlook" inclusive of that bureaucratic duress and the government's long term policy to encourage, to cajole entrepreneurs to take business risks, and ever mindful of those titah.

Business creates employment and generate income for the long term wellbeing of the nation as advised by those Hadiths and directed by the titah. This is the universal empirical reality and urgency. Poverty threatens lives.

Enlightened reason and full cognisance of the reality of extreme bureaucratic duress would have kept the law in abeyance, as guided by Divine Advice: Verse 173: Al Baqarah, and the Hadith.

b(vi) But in spite of such Divine Advice and Guidance and the Prophetic advice, and in spite of the faults and shortcomings of those bureaucrats, ambushes and prosecutions continue. In comparison, an accused for murder has legal leeway to defend himself by perhaps showing that the dire situation had prompted him to defend himself. But a helpless bureaucratic victim accused of labour-immigration transgressions has no such equivalent legal rights of self defence. No grey areas. The black odds are always stacked against the accused. The helpless bureaucratic victims are always the guilty party. That is the exclusivist interpretation of the law. A crucial question of national interest thus arises: In the context of Labour/Immigration issues,who would censure these irresponsible bureaucrats for being responsible for the miseries of those hapless applicants? "Quiz custodiet ipos custodes?" (Who is to guard the guards themselves?) Much law but little justice. "In a thousand pounds of law, there's not an ounce of love." (Quoted from "Dictionary of Proverbs", Penguin Reference.)

So, what shall we do to the call of our imams: "Do not hesitate to lend a helping hand: sermon" (The Brunei Times, August 18, 2007)? This sermon should have been specifically directed to those "controlling" labour-immigration licences. If this pin-point exclusivist, arbitrary interpretation is not corrected or stopped immediately, Brunei would sooner or later degenerate into a very individualistic, claspingly selfish, insensitive, couldn't care less, kau-kau, aku-aku society, for that matter nation. (They say, in New York, you are very lonely in a crowd!) Fear undermines strength in unity.

b(vii) Based on the Islamic Justice, those bureaucrats must be made accountable, for their deleterious actions. As was implied by Prof Bob Buckle, bad, unethical civil service lacking accountability is bad for economic performance of a country. In this context, it is very illuminating for us to digest the contents of a book titled "The Power to Destroy" written by Senator William Nixon and William V. Roth. This book highlights the damaging effect of overzealous, unrelenting bureaucracy of US Internal Revenue Service (IRS). They discovered that the IRS had become arrogant, arbitrary and, at times, malicious. This,they say, has been due to the IRS's unaccountability.

Public servants/bureaucrats are traditionally defined as "the public servants", the servants of the public. But the unaccountability and lack of empathy of those civil servants have made them "powerful" and "strong". This according to Marquis of Halifax in his writing "The Character of a Trimmer" asserted that the "powerful" and "the strongest" interpret the laws. Again might is right.

b(viii) Most bureaucratic victims succumb to "admission of guilt", because the law, to get justice, is very costly in many respects: fears, time and financial expenses, embarrassment. Actually, to have succumbed to "admission of guilt" masks the bureaucrats' collective shortcomings, inefficiencies, absence of due diligence-intradepartmental-counter-cross-checking to safeguard public interest. Those "controlling" departments are vying with each other to display "prowling prowess", particularly so when this destructive feat is publicly reported or advertised.

b(ix) Judging from increasing public concerns, what the nation desperately needs is the "deliverance prowess" against those overzealous bureaucrats to weed out their mistakes, shortcomings, inefficiencies, lack of sympathy, lack of essential due diligence-intradepartmental-counter-cross-checking in order to transform them into a constructive "approving, facilitating economic power" to develop the country.

One of the best Civil Services, as the "driver" of socio-economic progress is the Singapore Civil Service, "rated as having the lowest level of red tape and bureaucracy and the highest standards of corporate governance in Asia" (Political and Economic Risk Consultancy;2006); the "fuel, engine and wheels"of socio-economic progress being the entrepreneurs/the risk takers. Conversely, a "drunken driver" is dangerous. He may wreck the car and endanger the passengers. Is this the main reason why the government of His Majesty the Sultan and Yang Di-Pertuan of Brunei Darussalam launched the Program Mesra Pelanggan on March 7, 2007? If so, the public,in particular the entrepreneurs and their SMEs, have been eagerly awaiting its findings, conclusion and solution. The programme may be the genesis of the efficient, effective, trusted system of checks and balances on the bureaucrats. The trusted empathetic "guards who will guard the guards themselves".

b(x) Therefore, those bureaucrats must immediately heed those various titah of His Majesty immediately improve their outlook, to constantly review and revise their processes and mechanisms to reduce the public's burden. The public dread of bureaucrats must be immediately replaced via bureaucrats' empathy, sympathy, support, advice, helping hands to the public and entrepreneurs. They guide rather then entrap. They lead the way rather than push you away.

Nowadays, in this cut-throat world the real bureaucratic power, mental prowess is the ability, the competence to promote, to support, to guide socio-economic growth. The bureaucrats being the trusted, forward looking, capable, empathetic driver.

They must be like a radar-breaking system that avoids potholes and bumps for the smooth progress of businesses in this fast changing cut-throat business/economic environment. They enable the private sector economic engine and wheels to cruise steadily, successfully and profitably to create employment and generate income, thereby lessening the public's burden.

b(xi) A vital lesson from the book "Dynamic Governance: Embedding Culture, Capabilities and Change in Singapore", written by Professors Ne Boon Siong and Geraldine Chen is that: they ask questions, and they seek answers to "what enabled Singapore to consistently perform above the mean, so that on average you can create good policies, sustainable policies,adopt and change policies". The essence of the answer to one of the vital questions is: not only the best quality of the civil servants of Singapore but their interwoven affinity with, their empathy for, their pro-business support of their entrepreneurs and their SMEs; their genuine appreciation of the vital importance their entrepreneurs contribute in the creation of Singapore's impressive economic progress that made them one of the most internationally trusted, admired genus of civil service. To them economic development must be the number one priority.

The lifeblood of any nation; any individuals. Hence, to these civil servants, the entrepreneurs and their SMEs are the geese that lay the golden eggs. Thus they must not only be encouraged but assisted to spawn, hatch, grow and flourish. In a nut-shell this is in fact the essence of the titah on "Make SMEs engine of growth".

c. Now, we come to the amazing, crushing anomaly, of public interest: the existence of the so called "manpower agencies" vis-a-vis those bona fide employers/entrepreneurs who want to recruit their foreign workers direct, as outlined in (b) above.

Compared with the "vulnerable exposed" situation of bona fide employers/entrepreneurs, these so called "manpower agencies" are somehow allowed to exist and operate as "middlemen", to "efficiently" obtain labour quotas/immigration licences for entrepreneurs/employers. Do these "manpower agencies" have pools of/reserves of workers? On the other hand, as has been elaborated above in (b), it would be illegal for a father to ask his foreign amah or his foreign driver, his foreign gardener to temporarily help his son/daughter/relative, who desperately need the help of those foreign employees, since locals are not forthcoming, to tide over the painful indefinite wait for approval(s) of application(s) for labour quota(s), and other necessary approvals.

Imposing whatever disadvantages to those bona fide entrepreneurs to recruit direct their foreign workers efficiently, quickly is not only unfair, inequitable, but in terms of market efficiency and productivity this serious anomalous situation is self-defeating, in fact destructive to those bona fide employers/entrepreneurs, because the inefficiencies, the delays in approving their direct applications and the consequent criminalisation are seriously affecting entrepreneurship and hence the country's economic prowess.

This self-defeating situation cries for a simple, logical practical operational solution. Cut red tape. Be empathetic. Speed up processes. Turn the "Yes" key quickly. Prevent cross-purposes.

Help and guide. Be the integral part of the business strategy and economic radar.



Yang Dimuliakan Pehin Orang Kaya Lela Raja Dato Seri Laila Jasa Haji Awang Abdul Rahman bin Haji Awang Karim, DSLJ, PJK was formerly Permanent Secretary of the Ministry of Finance and the Ministry of Defence

Part 5 continues on Monday.