Law reform chances and hurdles

HUMAN rights group Suara Rakyat Malaysia (Suaram) has criticised Prime Minister Datuk Seri Anwar Ibrahim for the slow pace of institutional and legal reforms promised by him. Some of the criticisms are unjustified for many reasons.

The Prime Minister has been in office only since Nov 24, 2022; his Cabinet had its maiden meeting on Dec 5; and the 15th Parliament had its first sitting on Dec 20.

Surely, the consultative processes accompanying institutional and legal reforms need more time and deliberation.

Some reforms have already seen the light of day. The mandatory death penalty and natural-life imprisonment have been abolished; the number of offences punishable by death has been trimmed; and a Children’s Commission has been appointed.

On the anvil are constitutional amendments to abolish gender discrimination in citizenship laws.

Prime ministerial question time has been introduced, and the maximum number of motions in the special chamber has been increased from two to four.

The PM heads an ideologically diverse coalition in which forging consensus must be challenging. Further, economic revitalisation must take priority in these troubled economic times.

The law is just one, and not necessarily the most important force that moulds society. Beyond legal institutions, there are economic, religious, social, cultural, and educational institutions that operate independently of the law which need to be managed adroitly.

In seeking reforms, we must balance idealism with pragmatism. It is not only the content but also the consequences that must be weighed and measured.

Many problems, like poverty, economic disparity, gender discrimination, and racial and religious intolerance, are systemic and structural and require remedial approaches that need to be holistic and wide-ranging.

The task of law reform is so mammoth that no one institution can handle the reconstruction of the law single-handedly. The PM needs to marshal all institutions and procedures and develop new ones to help us bring about necessary changes in all areas of the law. The existing procedures for law reform around the world are as follows:

Parliament: Parliament can enact new legislation or amend or repeal existing laws to meet emerging needs. Sadly, due to lack of time 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. Legislation committees, permitted by Standing Orders, are appointed very rarely.

Judiciary: In all common law countries, judges expand the horizons of law through a creative, prismatic and constructive interpretation of the human rights and good governance provisions of the law. Judicial reform is, however, piecemeal and dependent on the accident of litigation.

Attorney-General’s Chambers (AGC): The AGC has a special law revision and law reform division. However, this division suffers from the dilemma that it has to propose reforms to those very laws framed by the AGC’s Drafting Division.

Ministries and statutory bodies: Individual ministries appoint ad hoc committees to draft reform proposals. Statutory bodies like Suhakam (Human Rights Commission of Malaysia) often generate scintillating plans of action.

NGOs: Many NGOs make valiant suggestions for law reform, mostly without much success. But sometimes down the road, the seeds they plant lead to the greening of the landscape of ideas.

Initiative, recall and referendum: In some countries – like Australia, Canada, Italy and the United States – these devices enable the people to bring their will to bear directly on the legislative process and machinery of government.

Specialised citizens’ committee: I humbly propose that every major Act of Parliament must contain a provision for a monitoring body consisting of affected interests. This committee must meet periodically to examine the law’s actual operation in society, and suggest reforms to the minister concerned.

Law reform commission: An independent law reform commission with the power to act on its own initiative as well as on a request from the Attorney-General, Law and Institutional Reform Ministry or a parliamentary committee can do much to keep the streams of law flowing robustly. When established, the commission must be independent of the Executive so that it can operate outside the political agenda of the government.

Its members must be drawn from all sections of the legal community. The luminaries appointed must have expertise, tenure, and a full-time job. 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”. It must explore the actual working of the law in practice. Its methodology must be consultative and implementation minded.

It must encourage community participation to 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.

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

Given the challenges our nation is going through, reform should address the following urgent and impending issues.

National harmony: For decades after independence, our country was an exemplar of harmonious relations within its dazzlingly diverse population. But we have regressed. Racism and religious bigotry have become mainstream in the peninsula. Every issue, whether a road accident or a breach of trust in public office, is evaluated through the lens of identity politics.

To arrest such polarisation and restore national harmony, a National Harmony Act should be enacted to provide for constructive engagements, conciliation and, in the last resort, criminal penalties.

Party-hopping: The shameful phenomenon has been partly tamed, but we need related reforms. The Constitution must be amended to provide an upper limit to the size of the Cabinet, as is the case in most state constitutions. Further, MPs must be disqualified from holding office in government-linked companies (GLCs) and statutory bodies.

Though Article 48(1)(c) disqualifies MPs from holding an “office of profit”, the concept is defined so narrowly in Article 160(2) that only a whole-time office in any of the seven Article 132 public services is forbidden. This permits MPs to hold lucrative positions in GLCs in return for political support.

Corruption: Endemic and brazen corruption, especially elite corruption, needs to be arrested and reversed. The Malaysian Anti-Corruption Commission should be upgraded to constitutional status and be given functional independence to investigate and prosecute crimes.

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, and we need a Government Procurement Act to regulate tenders.

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

Human rights: Some newly-emerging issues are galloping around the outskirts of our legal system and require humane consideration. Among them are forced disappearances, human trafficking and migrant death camps. Prisons and detention centres need humanisation.

The plight of the Orang Asli, the disabled, stateless and the poor, as well as the problems of the ageing population also require attention. Gender equality remains a distant dream. Public health facilities are becoming increasingly expensive.

The occasional conflict between civil and Syariah court jurisdiction has human rights implications.

Sustainable development: Predatory development policies and the plunder of nature for the benefit of the few must be prohibited. The rights of communities that rely on nature for sustenance are under severe jeopardy.

The list of areas where the rays of justice do not shine fully is rather long. Many of the areas for reform were summed up in the Institutional Reform Committee’s recommendations to the Prime Minister in 2018. The report of the Committee should be made public and acted upon.

The author is Tunku Abdul Rahman Professor at Universiti Malaya. In this season of Hari Raya Aidilfitri, he prays that the spirit of Ramadan remains in our heart and lights up our soul from within. The views expressed here are his own.