In Malaysia, if you grow up in a non-Muslim family, you may be familiar with Genting Highlands, 4D, Sports Toto, Black-Jack and so on. Like it or not, gambling habit is something deeply rooted in our culture. However, it is the complete opposite if you grow up in a Muslim family because it is prohibited by law to be involved in any gambling activities. “Maisir” in Syariah Law, is prohibited and is a form of hukum syarak in the Islam religion. It is also unsurprising to see religious political parties, like the Malaysian Islamic Party (PAS) to publicly advocate for the closing of casinos and a total ban on all gambling activities.
So, the issue is 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 an individual’s freedom and liberty to choose. To some, 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, education, etc. On the other side, it can also be argued that gambling should be banned for the good of society. The possible bad consequences may include increased criminal activities, involvement with loan-sharks or even the collapse of families and society. The economic benefits accrued from increased taxation will then also bring in social burden, and potentially, the government needs to spend more on crime prevention, rehabilitation, or even help those addicted to gambling.
Whether 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 the law should intervene to prevent the action from harming others?” and “How to strike a 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 the law which further provides the underlying reasoning, purpose, and rationale of the law. 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 causes 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. He further opined that the effect of prohibition towards one’s freedom of individual will be restraining the scope for spontaneity, originality, mental energy and moral courage. The society will be crushed by the weight of collective mediocrity.
As opposed to Mill, Professor Hart holds the view that the law shall confer individual protection from his actions. By the force of law, an individual is further protected from 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. Henceforth, the legislators, who are perhaps people with wisdom that are elected by the people, 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 to answer the question of whether to prohibit gambling requires much wisdom, and to maintain the equilibrium; the most suitable method applied may differ 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. For example, the government can seek to educate gamblers, regulate the gambling industry, and this can significantly prevent harm caused by gambling activities but at the same time, avoid from jeopardising the individual’s freedom and liberty. Nonetheless, illegal gambling, loan shark activities and other crimes 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 any gambling activities, and save oneself from addiction to the habit. The best advice to all gamblers should be to play within the limit.
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** The facts and views expressed are solely that of the author/authors and do not reflect that of the editorial board
