Approaches to law reform

THE Institute for Democracy and Economic Affairs (Ideas) deserves congratulations for launching a bold blueprint for the reform of Malaysia’s institutions.

While recognising the linkages between specific reforms, it has proposed 13 wide-ranging initiatives to provide a competitive and fair democracy for all citizens, and a clean, transparent and accountable governance system.

In support of Ideas’ well-researched proposals, it needs to be said that the law is not a changeless code but needs constant growth to cater to the felt necessities of the times.

This task is so mammoth that no one institution can handle the reconstruction of the law single-handedly.

We need to marshal all existing institutions and procedures and develop new ones to bring reforms to many areas of the law.

At the same time, we need to be conscious of the obstacles in our path.

First, 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 political, racial, religious, economic, social, cultural and educational forces that play a crucial role in our lives.

These forces often operate independently of the law and can defeat or delay the best of laws, and create a wide gap between legal theory and social reality.

Second, institutions are as good as the people who administer them. The periodic proposals for institutional or structural reforms cannot 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.

Third, in seeking reforms we must combine idealism with functionalism.

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.

Fourth, many problems like poverty, economic disparity and gender discrimination are systemic and structural, and require remedial approaches that are holistic.

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. It can invite public participation at the Bill’s committee stage.

Sadly, it is short of time because it sits for about 65 days per year from 10am to 1pm and 2.30pm to 5.30pm. In contrast, the English Parliament sits for about 160 days a year. Due to a lack 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.

Legislation committees, permitted by Standing Orders, are appointed very rarely. A Law Reform Committee of Parliament will be a good initiative.

An Institute of Parliamentary Affairs on the lines of Ilkap (Judicial and Legal Training Institute) and Intan (National Institute of Public Administration) to train MPs and senators is worthy of consideration.

The judiciary: In all common law countries, judges expand the horizons of law through a creative and holistic interpretation of the glittering generalities of the law. Judicial reform is, however, piecemeal and dependent on the accident of litigation.

The AGC: The Attorney General’s Office has a special law revision and law reform division.

However, this division is in an odd situation in that it has to propose reforms to those very laws that were framed by the Drafting Division of the AGC. There is also the issue of independence.

Ministries and statutory bodies: Individual ministries often appoint ad hoc committees to draft legislative proposals.

Statutory bodies like Suhakam generate scintillating proposals.

NGOs: Many NGOs and civil society organisations make valiant suggestions for law reform, mostly without much success.

Law Reform Commission: An independent Law Reform Commission or a Law Reform Institute is proposed.

It should have the power to act on its initiative as well as on a request from the Attorney General, the Prime Minister’s Department (Law and Institutional Reform) or a Parliamentary Committee, 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, the Bar, academia, the Attorney-General’s Office and legally qualified persons from companies and corporations.

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”.

The Commission must explore the actual workings 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 the 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.

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

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 the administration of law ought to be devised.

Role of citizens: In some countries, a prescribed section of the electorate can demand the initiation or recall of a law.

For some time, I have proposed that every Act of Parliament must contain a provision for a monitoring body appointed by the relevant minister and consisting of experts and representatives of affected interests.

This committee must meet every six months or so to examine the particular law’s actual operation in society and to suggest reforms to its minister and a (newly appointed) Law Reform Committee of Parliament.

Such a multifarious approach to legal and institutional reforms may do much to address the imperfections of the law and to combat many urgent and impending threats to our society.

What is important is that Parliament must harness the power of informed and committed citizens to promote the national good.

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.

On our part, all civic-minded citizens must cooperate with the existing law reform institutions and help to plant the seeds that may lead to the greening of the landscape of ideas.

Emeritus Prof Datuk Dr Shad Saleem Faruqi is the Holder of the Tunku Abdul Rahman Chair at the Faculty of Law, Universiti Malaya. He wishes all Muslims the blessings of Ramadan.

The views expressed here are the writer’s own.