Innovation Paradox: Irrelevancy of Argument

Some criticisms being put forth against the introduction of Computing Professionals Bill 2011 (“the Bill”) is that the Bill, by way of establishing Board of Computing Professionals Malaysia (BCPM), will restrain innovation among ICT knowledge workers. They further pointed out the success story of Bill Gate and Mark Zuckerberg, and argued that if the duo has to be registered under the Bill, the world will not enjoy the innovative products of Microsoft and Facebook.

This is a grave misconception of what ICT knowledge workers do is entirely in associations with the value of innovation. Indeed, innovation exists in everywhere and anywhere; it is certainly not proprietary nor privilege to IT and/or high-tech domain. From how a plumber connects water pipeline to how drug trafficking performs global delivery; from how a judge decides a landmark verdict to how a hawker cooks asam laksa, we can see certain elements of innovation and creativity. Hence, if we overly and blindly emphasize, which is the present state of paradox, the importance of innovation to ICT domain, our broader vision and strategic thinking ability are blocked by self-stupidity of arrogance.

One may be a super genius in innovating software solutions, but this must not be the case for accusing the establishment of BCPM could restrain him continues to be genius and outperformed. The thinking process of national development and economic growth must not be mixed with personal growth and individual skills development. Without such conscious deviation in mind, one will not be able to comprehend the rationales behind the proposed establishment of BCPM, no matter how genius one is. The innovation paradox, in this context, has its undividable root in inability to divide the two distinct mindsets.

 

In his media interview, YB Tony Pua commented that, there is no such law exists in the world attempting to regulate ICT knowledge workers. If this saying stands and is of correct, couldn’t we be INNOVATIVE enough to create an effective, efficient and productive mechanism to regular ICT knowledge workers? Should we be the innovator or follower in the context, YB Tony Pua?

A Quick Review of Computing Professionals Bill 2011

The Computing Professionals Bill (“the Bill”) was reportedly released in the evening of the 8^thday of December 2011. It has subsequently given rise to uneasiness among ICT fraternity despite MOSTI had clarified that the Bill does not apply to all ICT knowledge workers but only applies to those involved in Critical National Information Infrastructure (“CNII”) .

Although the Bill provides that CNII refers to “those assets, systems and functions that are vital to the nation that their incapacity or destruction would have a devastating impact on National economic strength or National image or National defence and security or Government capability to function or Public health and safety,” it does not further illustrate the contextual meaning of such definition. Nonetheless, the information from NITC Malaysia website provides that, CNII sectors consist of (i) National Defence & Security; (ii) Banking & Finance; (iii) Information & Communications; (iv) Energy; (v) Transportation; (vi) Water; (vii) Health Services; (viii) Government; (ix) Emergency Services; and (x) Food & Agriculture.

According to such a broad coverage of CNII, it has virtually included utmost, if not all, every economic activities although such economic activities may not “have a devastating impact on National economic strength or National image or National defence and security or Government capability to function or Public health and safety.” Notwithstanding that, the relevancy or irrelevancy of devastating impact has always been in association with time and space, and I will provide an explanation at the later stage.

I wish to take this opportunity to address some issues arising from the introduction of the Bill, and share my views on respective issues.

(1) New Form of Inequality and Discrimination

The use of the word, “Professionals”, in the Bill may subconsciously create a distinction line between professionals and non-professionals. That is to say, those register under the Board of Computing Professionals Malaysia (BCPM) carry the weight of professionals, whereas others not. This is not a healthy atmosphere considering that the meaning of professionals is not weighted by the nature of works and deliverables performed, as well as quality of service, but a mere registration. Such distinction could create a new form of inequality and discrimination between the two camps; the reputations earned from, and the prices paid to, professionals and non-professionals may put the two camps into confrontation.

(2) Computer Malpractice and Professional Misconduct

An interesting question arising from professionals is that, whether or not those carry professionals designation shall equally carry its weight of professional liability in relation to computer malpractice and professional misconduct? According to Bad Software: What to Do WhenSoftware Fails (1998), written by Cem Kaner & David Pels, the case of Chatlos Systems v. National Cash Register Corp. (1979) is the first important computer malpractice case. An NCR salesman did a detailed analysis of Chatlos’ business operations and computer needs, and advised Chatlos to buy NCR equipment. Relying on NCR’s advice, Chatlos bought a system that never provided several promised functions. Chatlos sued. NCR was held liable for breach of contract. In its Footnote 1, the Court discussed Chatlos’ claim of malpractice:

“The novel concept of a new tort called ‘computer malpractice’ is premised upon a theory of elevated responsibility on the part of those who render computer sales and service. Plaintiff equates the sale and servicing of computer systems with established theories of professional malpractice. Simply because an activity is technically complex and important to the business community does not mean that greater potential liability must attach. In the absence of sound precedential authority, the Court declines the invitation to create a new tort.”

This refusal to recognize the validity of a lawsuit for computer malpractice has been widely quoted. With the introduction of the Bill, and subsequently be passed becoming an Act, whether or not, Malaysian courts will recognize a registered computing practitioner, computing professional, and computing service provider as being professional, and thus enforcing higher standard of duty of care? It may also be equally good if the Bill can also introduce the scheme of PII (Professional Indemnity Insurance) to cover liability resulted from breach of duty of care, negligence, and breach of contract.

(3) Dispute Resolutions Mode

I must point out a good effort to incorporate the use of arbitration in dispute resolution as prescribed in the Section 11(1)(N). The case of Bank Simpanan Nasional v Cyber Business Solutions Sdn Bhd (Suit No: D-22NCC-279-2009) marks a significant milestone in the software dispute resolutions. In the past, it was widely practiced that the jurisdiction of arbitration derives from the agreement of the disputants. Notwithstanding that, the Court gave a consent judgment in favor of Cyber Business Solutions Sdn Bhd that pursuant to the Section 24A of the Courts and Judicature Act 1964, in the absence of arbitration agreement between the disputants, a High Court possesses power to refer litigation to arbitration even if any party objects. The significant messages brought up by this case in relation to software disputes are that:

i.             Software development and implementation could be a complex undertaking which involves both hard-skills and soft-skills of software professionals at specifically different domain knowledge.

ii.            The learned judge was of the view that taking into consideration of the case involved scientific investigations relating to computer and software and prolonged examination of voluminous documents, the real issue before a matter could be referred under Section 24A will depend on the complexity of facts and cannot be of law.

Apart from arbitration, perhaps the Bill should also introduce mediation process before arbitral proceedings. We have witnessed that construction, financial and sport industries have established their respective Alternative Disputes Resolution (ADR) mechanism. It is now the time where computing industry setup our own ADR system.

(4) By-laws

I think the Bill should empower BCPM to make applicable rules or by-laws in relation to its governance, such as rules that regulating procedural matters of arbitration and/or mediation. These rules or by-laws should seek to be gazetted in order to be legitimately enforceable.

(5) Complexity in Software Value Chain

Section 19 provides the ground of restrictions on unregistered person to deliver services. In an open source environment, anyone can publish his/her codes onto the Internet for free use. The question arising here is that, if a registered person adopts the code from unregistered person, whether or not this could construe as a breach of Section 19?

Conclusion

The introduction of the Bill appears to be a shock at its prima facie. However, after attending the BCPM Open Day held on the 13^th day of December 2011, and reading the press statement released by MOSTI and materials and comments from the Internet, I see bona fide intent to propose the Bill. To be faithful, from its first glance, the Bill appears to be ridiculous and silly. On further deliberations and due considerations, I have no doubt in supporting the objectives as put forth in the press statement of MOSTI, and the establishment of a dedicated statutory body to propel and elevate the standards of ICT knowledge workers by ways of regulation, I object, nevertheless, the following two wordings:

(a)          The use of the word “professionals” to divide the two camps. An alternative way to resolve this literally discriminated division is to adopt something similar to the way Chartered Institute of Arbitrators (CIArb) divides the level of competency in the regime of arbitration, i.e. Associate, Member, Fellow, and Chartered.

(b)          The use of the name “Board of Computing Professionals Malaysia” should be replaced as it connotes a stale, bureaucratic and red-tape kind of governance. The revamped Bill should adopt a more forefront naming in representing ever-fast-moving ICT industry. For example, comparing “Malaysian Bar” and “Law Society of Singapore” which both represent professional body for practicing lawyers in Malaysia and Singapore respectively, it apparently obvious that the later carries a modern and forefront representation.

To sum-up, if the ICT industry is characterized by the robustness of innovative elements, then the introduction of the Bill should equally be regarded as the product of innovation!