Isn’t healthcare a constitutional right?

 

The primary obligations of the government in any civilised country are to provide food, shelter, and ensure the health of its population.

In Malaysia, the right to life is entrenched in our constitution. Without food, shelter and health, life is meaningless.

That is why Article 5 of the Federal Constitution does not only guarantee life and liberty but has been extended by decisions of the courts over the years to include the guarantee of a certain quality of life.

In this context, “quality of life” means, among other things, that the government must also provide employment opportunities, acceptable pay, pension rights, unemployment benefits and medical care.

No doubt, that is a huge responsibility. Sadly, after 66 years of independence and despite the wealth of natural resources at its disposal thanks to the blessings of the Almighty, the Malaysian government has not achieved this to an acceptable level.

Across the causeway, Singapore, despite not having any natural resources, has been able to provide a world-class healthcare system for its citizens.

The provision of medical care is also propagated as a human rights obligation. The World Health Organization’s constitution, written in 1946, goes to the extent of saying that “the highest attainable standard of health is a fundamental right of every human being.”

To date, I have yet to hear of our human rights commission or other public interest bodies taking the government to task on healthcare issues.

The masses cannot afford private healthcare, and thus, an inefficient public healthcare service is tantamount to denying those in need this primary constitutional right.

Media reports constantly highlight the need for the government to allocate more resources towards improving facilities and making healthcare more accessible to ordinary Malaysians. These would include the setting up of needed facilities such as dialysis centres, and providing the appropriate remuneration for doctors, nurses and other healthcare professionals.

No doubt, an ageing population, the need to provide long-term medical support, the onset of pandemics, and the responsibility of addressing both medical and mental health issues would strain government resources. Poor management of resources simply exacerbates the problem.

I have observed that in India, in particular my district of birth, the public through the support of respected institutions such as the Rotary Club, religious and philanthropic organisations frequently raise funds to complement the government’s efforts to provide infrastructure support for healthcare facilities and medical equipment such as dialysis machines.

In the same way, all Malaysians have a duty to ensure the public healthcare system is sufficiently funded by government revenue or public aid. The government should also encourage corporations and individuals to support nursing-care facilities and community-care centres for the elderly through financial assistance and tax incentives.

In tandem with that, the government needs to take special initiatives to preserve the good health of all Malaysians.

In 2019, the government introduced a “sugar tax”, levying 40 sen per litre on sugar sweetened beverages to prompt Malaysians into making healthier dietary choices. That levy is set to increase to 50 sen per litre following Budget 2024.

More recently the battle to eradicate smoking has come to the fore. The much-touted “Generational End Game” (GEG) legislation, designed to eliminate smoking for those born in or after 2007 moved its way quickly to Parliament only to come unstuck recently after the new Attorney-General (AG) opined that it was unconstitutional.

His argument is that the GEG legislation violates Article 8 of the Federal Constitution that guarantees equality before the law. The AG claims that the proposed law is unconstitutional as it would give rise to unequal treatment between persons born before and after Jan 1, 2007.

This is a remarkable “U-turn” on the part of the Attorney-General’s Chambers, which had approved the relevant provision in previous iterations of the bill.

I cannot say that the AG’s contention has no basis in law.

Indeed, the constitution does provide that all persons must be treated equally, but there is a catch. The provision is not absolute, as the law does in certain circumstances allow for discrimination between classes of persons.

What that means is that both sides have merit in their argument. It is one which must be properly debated on the floor of Parliament, and, if and when the occasion arises, in a court of law.

For now, the government cannot hide behind the advice of the AG. After all, public health is a matter of public interest.

It, therefore, falls on the government to make public the AG’s written opinion so that all stakeholders and the best legal minds in the country can analyse and debate his arguments to determine whether they are sound.

At the end of the day, the country will surely benefit if the government invites views from corporate institutions, healthcare professionals, legal experts and the public at large as to how public health and medical care can be improved. - FMT

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.