No, they don’t know what they’re doing
IT will not surprise you that a lot of people want to talk to me about an alternative government.
But every so often, when the topic comes up, I will hear, often from people who I thought were smart enough to know better, “but these guys seem to know what they are doing”.
And gradually, it dawns on me that, even for people who most of us might consider intelligent, optics is everything.
It is amazing how far an ordinary politician can get with the title “honourable”, a two-piece suit, a shiny four-wheel drive car and driver and a gaggle of civil servants scurrying around him (occasionally her) waving Gazette notices.
That seems to be all they need to maintain the illusion of competence for themselves and everything they do.
In reality, they are just as short-sighted, prejudiced and, in some cases, downright stupid as the rest of us. The difference is that their power to do things ends up affecting all of us.
Three recent law changes might help prove my point. Most of them are boring and unsexy, but bear with me anyway.
Let’s begin with some new town planning regulations. They are supposed to help small, homebased businesses operate from (obviously) homes in residential areas where, as a rule, businesses are not supposed to operate.
If you do home-based catering, or an online consultancy, or sew clothes for people who come home for fittings, for example, you are not really getting in the way of anyone else in your residential area. So your neighbours generally won’t mind.
But, strictly, there are still rules to follow. Previously you would apply to your town or city council. The council would refer your application to the director of Town and Country Planning. With a bit of perseverance, you would then get the OK and get on with business.
So how do you think we should simplify this process? Maybe just let people get on with those businesses without that paperwork?
After all, why make rules for businesses who don’t bother anybody else?
And, let’s be honest, many of those businesses have never applied for permission at all.
But no. Now, through a complicated set of new rules, every home-based business now has to get permission from the Permanent Secretary for Local Government. Hasn’t he already got enough to do without having to decide whether someone can sell lovo packs from Samabula? Investment rules
What about foreign investment?
Well, with a lot of brave talk about new beginnings, the Government last year passed the new Investment Act. We needed the new law because of all the bureaucratic regulations in the old law, they said. From now on, everything about investment was going to be great.
But the new law sat uselessly in the lawbooks, unused, because no-one had written the extra regulations it needed.
Some people (me included) started making noise about this. I think the phrase “all talk and no action” might have been used – possibly several times.
So suddenly the Government swung into action. It published investment regulations. Trouble is, the new regulations just go back to exactly what the old regulations did – and worse.
First, they create death-defyingly petty rules about what foreign investors can’t invest in (“nightclub, other than those operated within the vicinity of a hotel or resort”).
But worse, they change the rules about who a “foreign investor” is - to a definition no lawyer can sensibly understand.
Then they put in a new rule saying that foreign investors must bring all their money into Fiji within three months. If they don’t, they can be prosecuted and fined and sent to jail for five years.
That seems to lend a whole new meaning to the term “investorfriendly”.
Next. In the last budget speech, the Economy Minister got it into his head that real estate agents were charging excessive commissions and this was driving up house prices (because, of course, it’s always somebody else’s fault).
So now the Government has issued new regulations. Real estate agents must not charge more than a 2 per cent commission when they sell a house worth less than $500,000.
Real estate agents can help you sell your house quicker, and at a better price, than you can. That’s why, in a market economy, there is a place for them - even though we complain about the fees they charge. If they didn’t add value, they wouldn’t exist.
But like all people in a market economy, they are motivated by commercial reward. So the new regulations mean that the best real estate agents will now say “we can’t make money helping people with low-value houses. We will make more money helping rich people sell pricier houses - so let’s just do that”.
So who loses out? The people with homes worth less than $500,000.
Laws at whim
Time and time again, the Government seems to run around passing laws at whim. A doctor apparently told the Economy Minister that the rules about mentoring from senior doctors were unfair to him. So the Government announced it would change that law.
A few years ago, an accountant (I think) complained that the Fiji Institute of Accountants wouldn’t register him (presumably for a reason). So – hey presto! – we get a new “Registration of Skilled Professionals Act”.
Under this law, any accountant, engineer, lawyer, valuer, etc who can’t get registered by his or her own professional body can just ask a Government committee instead. Apparently the Government knows better.
And if the Government says yes, the professional body must register that person.
And, if he or she is an expatriate, the Director of Immigration must give him or her a work permit.
Everybody must follow orders. If they don’t they can be fined $20,000 or sent to jail for two years – even the Director of Immigration!
I could go on and on. There is a 17-year-old residential rent freeze – not just for low-rent houses but for high-rent ones as well.
A committee of five permanent secretaries has to sit and decide whether, if you are a nonresident, you can have more than two years after buying your land in which to build your house. This is just the stuff that I can remember on a Friday morning as I write this.
What do all these laws have in common?
It’s this. The Government just rushed them out without asking anybody.
They consulted no one. They didn’t say to the people who would be affected by the laws: “What do you think? Will this work? How can we make this better?”
Instead, a minister and his civil servants got into a huddle and, despite knowing nothing about business, made rules for business.
A few years ago, just as the Government was about to make another stupid set of rules (for client reasons I won’t say about what) we gathered some clients together to talk to the chief bureaucrat, together with the Government lawyer who was drafting the rules, and explained to them the realities of business life.
The Government lawyer, who (it seemed to me) had never actually talked to real business people before, seemed to learn something from it. So, I said, when you do your next draft of these rules, will you consult us?
He looked sheepish. He would have to get permission from his minister to do that, he said.
Post script – nothing has happened. The rules remain unclear. Businesses just roll their eyes and try to get on with life. They have real work to do.
People seem to think that talk of consultation is mostly just about political window-dressing and looking good. It’s more than that.
When you don’t consult, there are real-life consequences. People suddenly find that they are about to break laws they didn’t know about. So they have to drop everything and work out what the law means – which costs them legal fees.
You have frustrated, bureaucracy-entangled investors and people who just say “it’s too hard, I will set up somewhere else”. Deals get stalled. New initiatives are grounded.
Business people try to explain to bureaucrats the problems their laws create. The bureaucrats listen politely and make notes in their diaries (for some reason they all write notes in their diaries).
But they can’t do anything. Because to say to a minister “this law appears not to be perfect” risks being sacked.
The Government seems to be deeply insecure about consulting anyone about the laws they make. As far as I can work out, Government people are afraid that if they listen, they might agree that their ideas are not so smart. But this might mean that the Minister who wants to make the law is not the smartest person in the room – and we can’t have that, right?
Let’s be clear – good regulation is a good thing. If the rules are worked out with those who have to follow the rules, this is good. It’s like the rules of rugby (well, as far as I understand them). Everyone understands how they must play.
Bad regulation, driven by personal whims or crowd-pleasing politics – or worse, the whisperings of political cronies – is disastrous. It leads to loss of confidence, law-breaking and corruption. Because the more rules there are, the more opportunities for the rule-keepers to accept bribes or favours from people who want to get around the rules.
We have to stop trusting and believing that the politicians in suits, who come out only to receive salusalus and make speeches (until election time, when they seem to be everywhere) are smarter than we are or know what they are doing.
The proof, demonstrated by some of our more stupid laws, is that they really have no idea.
RICHARD NAIDU is a Suva lawyer. Yes, he really has to read these laws – it’s his job. The views expressed in this article are not necessarily those of The Fiji Times.