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Thursday March 6, 2014 MYT 12:00:00 AM
Thursday March 6, 2014 MYT 6:59:26 AM
by shad saleem faruqi
AS laws are meant to regulate our lives, their existence should be known, their content should be accessible and their meaning should be comprehensible.
Free access to law is conducive to the promotion of justice and the rule of law because it reduces the gap between those who can hire legal help and those who cannot.
Free access to law is part of the broader human right to education.
In citadels of learning, free access to legal information helps scholars in their research, keeps legal knowledge up to date, promotes globalisation and facilitates comparative perspectives of legal systems. It encourages law reform by enlightening us on how others tackle problems and challenges similar to ours.
Despite the above, the regrettable reality is that in most societies, access to the law is a serious problem. Everywhere in the world there is an explosion of laws. While the statutory mountain continues to grow, our knowledge of it declines in inverse proportion.
Many laws slip into the statute book unknown. This problem is acute in relation to subsidiary legislation.
A large number of statutes are amended so frequently that even professionals have difficulty keeping up with the latest amendments. Almost all statutes are drafted in such convoluted legalese that no ordinary citizen can comprehend the technicalities.
It is in this background that we salute the Free Access to Law Movement – a global initiative since the 1990s to provide free online access to legal information.
The movement’s guiding principles are that public legal information is digital common property and should be accessible to all on a non-profit basis and free of charge. Independent non-profit organisations have the right to publish it and government bodies that create and control such information should provide access to it.
Though Malaysia is not a member of the 45-strong Free Access to Law Movement, there are some developments in our legal system, which support the movement’s ideals.
The non-government Malaysian Legal and Tax Information Centre operates a cluster of web portals that supply the latest legal and tax updates free of charge.
The website of the Federal Court’s registry publishes the latest Federal Court and Court of Appeal (but not High Court) decisions. The website of the Attorney-General’s Chambers (AGC) gives us free access to latest legislation.
Despite these generous offerings, free access to legal information faces many hurdles.
> The AGC’s service is an updating service. There is as yet no comprehensive online repository of all old primary legal materials.
> There is an unnecessary secrecy that surrounds all Bills till they are laid before parliament for the first reading.
> Commercial documents like toll concessions are denied public scrutiny by bringing them under the Official Secrets Act.
> The final copy of an Act of Parliament leaves out the Statement of Objects and Reasons that was painstakingly prepared by the AGC to assist the reader to interpret the law. In view of changed judicial attitudes towards preparatory and parliamentary materials, and amendments to our Interpretation Acts in relation to background materials, it may assist those interpreting statutes to refer to the masterly Statement of Objects and Reasons.
> Except in the AG’s Chambers there appears no other place for a comprehensive collection of subsidiary legislation. This is most unsatisfactory because subsidiary legislation outnumbers primary legislation by almost 1:10. Further, subsidiary legislation is drafted in administrative corridors without any parliamentary debate and (most of the time) without any consultation with affected interests.
> Government Circulars, Schemes and Instructions are pervasive but are not gazetted as they do not constitute “law” under Article 160(2) of the Federal Constitution or under the Interpretation Acts. However, their juridical impact is widespread and more openness is needed.
From a sociological point of view, law is not confined to black letters in formal sources of law. Law is what happens. The Government should be obliged to make public through gazetting of all its Circulars and Directives that affect citizens’ rights.
> A glaring weakness of our system of law reporting is that the arguments of counsel on both sides are not separately summed up for the scholar pursuing the case and analysing the decision.
> The private sector seems to be exempted from the duty to provide access to its legal information. The distinction between public law and private law is an artificial one and it is arguable that if a private contract or transaction has a public element then some openness is needed.
> The massiveness, complexity, interconnectedness and contradictions of the law are such that most law is too far beyond the understanding of ordinary people. Giving citizens free access to convoluted statutes and case laws will hardly give them a clue about how to regulate their lives according to the law. Access is necessary but not sufficient.
What is needed is for a government-assisted but independent Law Information Institute, working with Law Faculties, the Bar Council and other NGOs to improve our access to laws and to tackle the unmet challenge of legal literacy. Among other tasks, the Institute must produce easy to understand brochures on various fields of law that impact critically on citizens’ welfare.
A few years ago the Bar Council’s group MyConsti initiated such a project for our Federal Constitution. Many other groups like Sisters in Islam produce brochures for Muslim women in need. Universiti Malaya has a Community Outreach Programme.
Newspaper columns like this one can do much to clarify the nooks and crannies of the law.
If free access to legal materials can be combined with vigorous attempts at legal literacy, that can help greatly to produce a citizenry conscious of its rights and cognisant of its responsibilities.
> Shad Faruqi is Emeritus Professor of Law at UiTM. The views expressed are entirely the writer’s own.
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Opinion, Shad Saleem Faruqi
While the statutory mountain continues to grow, our knowledge of it declines in inverse proportion.
Constitutional issues are coming to the fore, revolving around the posts of the head of government and head of state.
National reconciliation cannot be accomplished by the force of law alone because the law is not a magic wand.
We need to sit down with humility and maturity at the table of fellowship for a dialogue.
FOR most of its 56 years Malaysia’s segmented society has managed remarkably to preserve peace, tranquillity and development. Lately, however, some intractable religious and racial disputes have besmirched the gentle face of our land. We must maintain a sense of balance.
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