In support of the minister’s courageous admission, it needs to be admitted that life is larger than the law. Most, if not all, aspects of the legal system need growth and evolution to avoid the danger of being out of tune with the times.
No human law is a changeless code; they need constant reinterpretation and adaptation to cater to the felt necessities of the times.
In Malaysia with a supreme Constitution and the power of the courts to review legislation on the ground of unconstitutionality, there are several other reasons for keeping legislation under review.
First, if under Article 162(6), the courts amend, adapt or repeal a pre-Medeka law that does not conform to the Constitution.
Second, if a post-Merdeka law has been invalidated by the courts on the ground of unconstitutionality.
Third, if the static, black-letter rules of the Constitution or a written law are interpreted by the courts either historically, holistically, purposively, functionally or morally to add new colours to the legal canvas. In all such situations, law reform or revision must take place to accommodate the new judicial construction.
However, our reformative zeal must take note of the obstacles and challenges in our path.
First, the law is not a magic wand. There are limits to what the law can achieve. The law is just one, and not necessarily the most important, factor and force moulding society.
Beyond legal institutions, there are political, racial, religious, economic, social, cultural, historical and educational forces that play a crucial role in society.
These forces operate independently of the law and can defeat or delay the best of laws. They often lead to a wide gap between legal theory and social reality.
Law reform, therefore, needs educational, moral and financial backing from many other factors and forces in society.
Second, the task of law reform 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.
Third, in seeking reforms, we must combine idealism with functionalism. It is not what the law says that is important. More significant is what the law does: Not only form but also functioning, not only content but also consequence must be measured.
Fourth, many problems like poverty, economic disparity, gender discrimination and racial and religious discord are systemic and structural. They require remedial approaches that are not merely legal but holistic as well.
Fifth, institutions and systems are as good as the people who administer them. The periodic proposal for institutional or structural reforms cannot achieve integrity and efficiency in government unless the appointment and promotion processes give preference to able, honest and visionary leaders and public officials with integrity.
Coming to institutions and procedures for law reform, around the world these are as follows:
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. There is also the fact that many judges are wedded to the jurisprudence of strict, literal and “original intention theory of legal construction”. They seek refuge in the doctrine of separation of powers to refuse holistic or prismatic interpretations of laws.
According to them, law reform is the function of Parliament and not of judges.
Law Reform Commission: An independent Law Reform Commission or a Law Reform Institute exists in many lands and is proposed for Malaysia. It should have the power to act on its own initiative as well as on a request from the Attorney General, Ministry of Justice 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, should 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 Chambers (AGC) 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 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 to also 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 ought not to be ignored. Wherever there is a right, there must be a remedy.
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, Parliament is short of time because it sits for only about 65 to 70 days per year from 10am till 1pm and 2.30pm till 5.30pm. In contrast, the UK Parliament sits for about 160 days per 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 standing Law Reform Committee of Parliament will be a good initiative. An Institute of Parliamentary Affairs on the lines of Ilkap and Intan to train MPs and senators is worthy of consideration.The AGC: The AGC has a special law revision and law reform division that works overtime to keep laws updated. 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.
Ministries and statutory bodies: Individual ministries often appoint ad hoc committees to draft legislative proposals. Statutory bodies like Suhakam generate scintillating proposals.
Citizens and NGOs: Many NGOs and civil society organisations make valiant suggestions for law reform, mostly without much success. 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 minister-appointed monitoring body consisting of voluntary representatives of affected interests.
This committee must meet every six months to examine the particular law’s actual operation in society and suggest reforms to its minister, who must refer the proposals to the (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 combat many urgent and impending threats to our society.
What is important is that the government and Parliament must harness the power of informed and committed citizens to promote the national good.
Regrettably, our approach is to keep Bills hidden behind the curtain of the Official Secrets Act till they are laid in Parliament – which is mostly just a few days before the first reading.
This is in sad contrast with countries like the UK where, before important Bills are presented to Parliament, a White Paper is issued to publicise the Bill and seek public feedback.
Our approach up to now is to be reactive to problems after they arise and 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. We must be proactive and not just reactive.
Emeritus Prof Datuk Dr Shad Saleem Faruqi is the Holder of the Tunku Abdul Rahman Chair at the Faculty of Law, Universiti Malaya. The views expressed here are the writer’s own.
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