LIKE it or not, the habit of gambling is something deeply-rooted in our culture. If you hail from a non-Muslim family in Malaysia, you will surely be familiar with Genting Highland, 4D, Sports Toto and Black Jack, to name a few.
However, it will be the opposite if you grow up in a Muslim family. In Malaysia, Muslim law prohibits gambling, as gambling (or “maisir” in Syariah Law) is prohibited as it is a form of “hukum syarak” in Islam.
It is therefore unsurprising to see religious political parties like PAS publicly advocate for the closing of casinos and a total ban on all gambling activities.
This therefore begs the question as to whether gambling should be banned or allowed in Malaysia.
There are pros and cons to gambling. On one hand, one might argue that gambling should not be banned as it is a person’s freedom and liberty to choose whether they gamble or not.
It might be a stress-relief activity that also provides bonding opportunities between family members and enables self-satisfaction.
With gambling, industries also bring in more taxation revenue for the government, which means the funds can be used in enhancing social welfare or education, for example.
On the other hand, it can also be argued that gambling should be banned for the good of society. The possible negative consequences to gambling include the increased presence of loan sharks and criminal activities or even the collapse of families and society.
The economic benefits accrued from increased taxation will then also bring about social burden, and potentially, the government will then need to spend more money on crime prevention and rehabilitation.
Whether or not gambling should be banned is never an easy question. While the aim of the law is for the protection of people, the question will then be “How far should the law intervene to prevent the action from harming others?” and “How to strike balance between the freedom of people and preventing harm on the individual himself?”
To answer this question, it is handy to refer to the deeper jurisprudence of law, which further provides for the underlying reasoning, purpose, and rationale of the law.
Specifically, a comparison between the Harm Principle proposed by John Stuart Mill and Paternalism Principle by Professor HLA Hart may shed some light on the issue.
Mill, who is often identified as holding a classical liberal stance in concerning law and morality, opined that “The only purpose for which power can be rightfully exercised over any member of a civilised community against his will, is to prevent harm to others. His good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so because it will make him happier because in the opinion of others, to do so would be wise, or even right”.
In other words, the ban is only justified when the action caused harm to others. The possible consequences of harming the person himself are insufficient to warrant a prohibition of a certain action.
According to Mills, “Each is the proper guardian of his health, whether bodily or mental or spiritual. Mankind is greater gainers by suffering each other to live as seems good to themselves than by compelling each to live as seem good to rest”.
This argument is premised on the ground that human beings can make their own decisions and should be accorded autonomy to do so.
Mills further opined that the effect of prohibition towards one freedom of individual will be restraining the scope for spontaneity, originality, genius, mental energy, for moral courage. Society will be crushed by the weight of collective mediocrity.
As opposed to Mill, Professor Hart holds the view that the law shall also confer the individual protection from his actions.
By the force of law, an individual is further protected from the potential injury, harm, and damage that may be caused to themselves by themselves. For instance, the prohibition of committing suicide or consuming drugs.
By using this approach, the legislation will be the guardian of the public in which they will be deciding for the public.
The underlying reason behind this whole concept of paternalism is that the public is often illustrated to be irrational and unable to make the best choice on their own.
Hence, the legislators – who are likely to be people with wisdom elected by the public – may be viewed as the person in the best position to make the decision.
Emotion, incitement and provocation by others will be excluded when a decision is made, which may enhance the possibility of making a good decision.
A comparison between the two scholars will illustrate that it requires much wisdom to answer the question of whether to prohibit gambling.
The most suitable method to be applied differs and will be highly dependent on the circumstances in society.
Perhaps, the best policy to be applied in Malaysia lies in the middle of the ideology of both scholars mentioned above.
On one hand, the right of the public to liberty, enshrined under Article 5 of the Federal Constitution should be upheld, but stricter policies and regulations should be introduced to minimise the social impact of gambling activities.
Rather than being a “rotan” type of paternalism, the government can act as a softer and more protective type of “parents” to educate gamblers and to regulate the gambling industry.
Doing so can significantly prevent harm caused by gambling activities but at the same time, avoid from jeopardising the individual freedom and liberty.
Nonetheless, illegal gambling, loan shark activities and other crime associated with gambling should be combatted at all costs to prevent the consequential harm that might be caused.
As an individual, one should always bear the responsibility to exercise self-control and discipline while involved in gambling activities, to save oneself from addiction to the habit.
The best advice to all gamblers will then be, “Play within the limit”. – Jan 10, 2023
Chin Jing Hui is a third-year law student at Universiti Kebangsaan Malaysia (UKM) while Dr Nabeel Mahdi Althabhawi is a senior lecturer attached to the public varsity.
The views expressed are solely of the author and do not necessarily reflect those of Focus Malaysia.
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