Approaches to law reform

THE Bar Council of Malaya must be congratulated for its seminar on Sept 20 to renew its decade-old quest for an independent Law Reform Commission. As a guest speaker, it was my privilege to support the proposal and at the same time offer some words of caution.

First, the law is not a changeless code but is in need of constant growth to cater to the felt necessities of the times. Its whole body is potentially in need of periodic review. The task is so mammoth that no one institution can handle the reconstruction of the law single-handedly. Therefore, we need to marshal all existing institutions and procedures and develop new ones to help bring about growth and change in the law.

Second, there are limits to what the law can achieve. The law is just one, and not necessarily the most important, factor and force that moulds society. Beyond legal institutions, there are economic, religious, social, cultural and educational forces that play a crucial role in society.

These forces operate independent of the law and can defeat or delay the best of laws. Reformers need to harness these forces and engage with their leaders.

Third, institutions are as good as the people who administer them. Institutional or structural reforms cannot by themselves achieve integrity and efficiency in government. The need for able, honest and visionary leaders and public officers with integrity is just as important as proper institutions and procedures.

Fourth, in seeking reform of law and institutions, we need to adopt a functionalist approach. It is not what the law says, it is what it does that is important. Not only form but also functioning, not only content but also consequences must be measured.

Fifth, many problems like poverty, economic disparity and gender discrimination are systemic and structural in nature and require remedial approaches that are socio-legal, holistic and people-centred.

The existing institutions or procedures for law reform are:

The Judiciary: In all common law countries, judges expand the horizons of law by a creative, holistic interpretation of the seamless web that constitutes the law. Judicial reform is, however, piecemeal and dependent on the accident of litigation.

Attorney General’s Chambers: The AGC has a special law revision and law reform division that does good work but has too much on its plate.

Ministries and statutory bodies: Individual ministries often appoint ad hoc committees to draft legislative proposals. Statutory bodies like Suhakam: The Human Rights Commission of Malaysia generates scintillating proposals.

NGOs: Many NGOs like the Bar Council make valiant suggestions for law reform, mostly without much success. Despite their failure, their deliberations are not all wasted. Sometimes down the road, the seeds they plant lead to the greening of the landscape of ideas.

Parliament: Our Parliament can enact new legislation or amend or repeal existing laws to meet emerging needs. It can invite public participation at the committee stage. Sadly, due to lack of time, (it meets only 70 to 80 days a year), shortage of expertise and a very passive view of its constitutional role, our Parliament is content to play second fiddle to the Executive in law initiation and law reform.In 65 years, no Private Member’s Bill has ever succeeded in becoming law. Legislation Committees, permitted by the Standing Orders, are appointed very rarely. A Standing Law Reform Committee of Parliament to work with like-minded institutions and individuals will be a good initiative.

Procedures of initiative and recall: In some countries, a prescribed section of the electorate can demand the initiation or recall of a law.

Specialised Citizens’ Committee: I humbly propose that every major Act of Parliament must contain a provision for a minister- appointed monitoring body consisting of community leaders to represent affected interests. This committee must meet periodically to examine the particular law’s actual operation in society and to suggest reforms to the minister and to the proposed Law Reform Committee of Parliament.

A Law Reform Commission or Institute: An independent Law Reform Commission or Law Reform Institute, with the power to act on its own initiative as well as on a request from the AG, the Ministry of Justice or a parliamentary committee, can do much to keep the streams of law flowing and healthy. The necessity for such a body can hardly be exaggerated. At the federal level, we have thousands of primary statutes and subsidiary legislation. At the state level, the picture is even more complex and crowded.

The commission or institute when established must be independent of the Executive so that it can operate outside the political agenda of the government and provide an independent voice for reform and redemption.

Its members must be drawn from all sections of the legal community including the Judiciary, Bar, academia, AGC and legally qualified persons from companies and corporations. The luminaries appointed must have expertise and a minimum tenure of five years. They must be supported by full-time research and administrative staff.

The commission’s approach must be inter-disciplinary, socio-legal and not confined to what is called “lawyer’s law”. The commission must explore the actual working of the law in practice. Its methodology must be consultative and implementation minded. It must encourage community participation, which will achieve two purposes: feedback will be obtained and a sense of public ownership over the process of law-making will be fostered. Decisions in which people participate are decisions they are likely to respect.

The commission’s aim should be to not only update and modernise, but also to simplify and harmonise the law to suit local needs and cater to local circumstances. Substance as well as procedure ought to be given equal weight. New and more effective methods for administration of law ought to be devised. Justice is not in legislation but in administration.

The remedial aspects of the law must not be ignored. Rights without remedies are like lights that do not shine and fires that do not glow.

It is a matter of policy whether the commission should be merely recommendatory or whether it must be given delegated legislative authority to convert its findings into subsidiary legislation subject to disallowance by Parliament.

Given the conditions our country is going through, reform must address some urgent and impending threats to society. Their list is long and painful. Only a few areas will be mentioned.

We need a National Harmony Act to restore our hitherto successful inter-communal living. Endemic and brazen corruption, especially elite corruption, needs to be arrested. The Anti-Corruption Commission should be upgraded to constitutional status and given functional independence to investigate and prosecute crimes. At the moment, prosecutions require the AG’s clearance.

MPs must be disqualified from holding office in government-linked companies and statutory bodies. To assist the fight against corruption, we need openness in government. A Freedom of Information Act must replace the Official Secrets Act. The Whistleblowers Protection Act, and Witness Protection Act need improvements. We need a Government Procurement Act to regulate tenders.

There is serious discontent in Federal-State relations between Sabah and Sarawak and the central government and, though it is being looked into, the recalibration should not wait too long.

Some newly emerging issues require humane consideration. Among them are forced disappearances, human trafficking, migrant death camps, the plight of the Orang Asli, the disabled, stateless and the poor. Gender equality remains a distant dream.

Urban poverty and the problems of the ageing population require attention. Prisons and detention centres need humanisation. The occasional conflict between civil and Syariah court jurisdiction has human rights implications for the non-Muslims.

Ecological sins are widespread. The plunder of nature for the benefit of the few must be prohibited. The rights of communities that rely on nature for sustenance are in severe jeopardy. The rights of future generations must be recognised and protected. Predatory development policies show no respect for the goals of sustainable development. We seem to forget that growth for the sake of growth is the ideology of the cancer cell.

Integrity, professionalism and neutrality in public services have been seriously compromised.

There is much to be done. Our approach up to now is to be reactive to problems after they arise and to offer piecemeal proposals. Instead, we must establish a proactive, participatory and people-centred Law Reform Commission or Institute to keep the streams of law flowing.

Let us harness the power of informed and committed citizens for promoting the national good.

The author is Holder of the Tunku Abdul Rahman Foundation Chair at Universiti Malaya. The views expressed here are entirely his own.