The Computing Professionals Bill (“the
Bill”) was reportedly released in the evening of the 8thday 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 13th 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!
