Infernal Ramblings
A Malaysian Perspective on Politics, Society and Economics

Sunset Clauses Keep Temporary Laws Temporary

Written by johnleemk on 5:29:28 am Apr 7, 2007.

One biggest problem with any government is its resistance to change. The country's survival may be on the line, but as far as bureaucrats and politicians solely reoccupied with re-election are concerned, anything to remedy the situation would only harm them. A bitter pill is hard to swallow.

Making matters worse is the fact that the political structure of most democracies is opposed to changing the status quo. If you want to repeal a particular law, the onus is on you to gain the support of a majority in the legislature.

This in itself is not necessarily a bad thing — laws are enacted for good reasons, after all. But in the case of many laws, at the time they are enacted itself, it is recognised by most (if not all) that they are only a temporary solution. They are not enacted with the intention of being permanent parts of the statute book — they are passed as expedient remedies to a pressing situation.

Some examples might be, for example, protectionist tariffs and subsidies. Most protectionists these days recognise that the market must win in the long run, and thus argue that they are not fighting for permanent protection — just enough to help an "infant industry" off the ground.

I personally find the infant industry argument spurious, but there may be something to temporary protectionism. The trouble is, this "temporary" policy eventually becomes permanent simply by virtue of the political system's favouring the status quo. Try garnering support to repeal a "temporary" tariff or subsidy, and see how far you get.

In Malaysia itself, a particularly infamous example would be repressive security laws such as the Internal Security Act and the various ordinances enacted as law by the executive using its emergency powers. These laws were often passed with an explicit goal of handling the immediate and desperate security situation — the ISA was passed during the communist insurgency, while many other such draconian laws were enacted in the wake of the May 13 racial riots that rocked the nation's capital.

The trouble is, of course, that these laws became permanent. In some cases, it's even apparent that the government subtly abused the political process to make the repeal of these laws after the emergency had passed much more difficult. For instance, the ISA was actually a combination of laws that had been subject to a "sunset clause" — they had to be renewed by Parliament on an annual basis, or they would lapse. The government then passed the ISA as a permanent law, even though the communist insurgency was nearing its end.

The idea of a sunset clause seems to be an ideal way to balance the need to protect a country from unnecessary turmoil with the need to change. Sunset clauses now reverse the burden of change — the onus is on the law's supporters to find the majority to keep it on the statute books, instead of the onus being on the law's opponents.

The sunset clause of course has its drawbacks. It presumes that in the first place, legislators will be wise enough to recognise that a law will probably become unnecessary in the future, and insert a sunset clause when drafting the new law. This is, of course, a bit of an unrealistic assumption, although it's obvious that some of the worst offending laws, such as those pertaining to economic protectionism and internal security matters, will be caught by sunset clauses.

The sunset clause isn't a perfect solution to a recalcitrant political system. But it's a good start, and at least ensures that "temporary" laws will remain just that — temporary, being in place for as long as they are needed, and not a moment more.

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Infernal Ramblings is a Malaysian website focusing on current events and sociopolitical issues. Its articles run the gamut from economics to society to education.

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