Wednesday May 30, 2012
The promise of law reform
REFLECTING ON THE LAW By SHAD SALEEM FARUQI
Law reform agencies can be moderators, modulators and mediators of change.
THE Government’s acceptance of the proposal to set up a Law Reform Commission is commendable, though long overdue.
For many decades, the need for a formal, independent institution to act as an initiation point for law reform had been highlighted by many individuals and organisations.
I had written about setting up a Malaysian Law Reform Commission as early as 1979 in the Journal of Malaysian & Comparative Law.
At the very outset, it must be noted that the call for a separate Law Reform Commission is not meant to undermine or devalue the multiplicity of other acceptable techniques for keeping the law dynamic and in tune with the times.
The nature of the law is such that its whole body is potentially in need of periodic review. The task is so mammoth that no one institution or person can handle reconstruction of the law single-handedly.
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 relevant litigation.
The Attorney-General’s Office has a special law revision and law reform division. Recently, the A-G’s Chambers was instrumental in setting up the International Centre for Law & Legal Studies (I-Cells) to carry out in-depth research on issues of priority at the domestic, regional and international levels.
Individual ministries often appoint ad-hoc committees to draft legislative proposals. Statutory bodies like Suhakam generate scintillating proposals. Many NGOs make valiant suggestions for law reform, mostly without much success.
Despite their failure to achieve immediate success, their deliberations are not all wasted.
Sometimes, down the road the seeds they plant lead to the greening of the landscape of ideas.
Nevertheless, their ad-hoc, part-time efforts are not adequate.
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, expertise and a very passive view of its constitutional role, our Parliament is content to play second fiddle to the Executive in law initiation.
An independent Law Reform Commission or a Law Reform Institute, with power to act on its own initiative as well as on a request from the Attorney-General or the Ministry of Justice, can do much to keep the streams of law flowing and healthy.
The necessity for such a body can hardly be exaggerated.
We have more than a thousand primary statutes and probably around 15,000 pieces of federal subsidiary legislation.
At the state level, due to our federal system, the picture is more complex and crowded.
Some Acts of Parliament violate the Constitution and the cherished human rights that it guarantees.
Some legal provisions appear outdated when faced with the complexities of the new social, commercial and economic life.
Others require revision to measure up to the technical innovations and globalisation of the age.
Almost always, a wide gap between the theory of the law and the reality on the ground is discernible.
Periodically, this gap needs to be bridged by law reform.
Often, on a particular field, there is a multiplicity of laws, some of which clash with each other.
This multiplicity points to the need for consolidation.
The Commission, when appointed, must exhibit some essential characteristics.
It must be independent of the Executive. 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. The Commission must explore the actual working of the law in practice.
Its methodology must be consultative and implementation-minded.
Community participation in law reform will achieve two purposes: feedback will be obtained and a sense of public ownership over the process of law-making will be fostered.
The Commission’s aim should be not only to update and modernise, but also to simplify and localise the law to suit local needs.
Substance as well as procedure ought to be given equal weight.
Every Act of Parliament must contain provisions for a monitoring body to examine the law’s actual operation in society.
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.
Any Law Reform Commission anywhere will, however, face the intractable problem of addressing complaints of structural and systemic injustices, i.e. complaints that the whole system or process is built on framework assumptions that are oppressive to some section of the population.
For example, there are allegations that adversarial court processes oppress the unrepresented poor; the system of taxation helps the business community and hurts the wage-earner; land registration rules are detrimental to the rights of the orang asli and the natives.
All such transformative issues involve political and economic ideology and are matters of policy not suitable for the Commission and more apt for determination by the elected government of the day.
There is little point in producing proposals that will be dismissed out of hand because the options recommended are not such as the Government can consider seriously.
Having said that, it must be noted that if a Law Reform Commission refuses to investigate structural issues, it will merely beat about the periphery of the legal system and fail to examine justice or injustice at the core.
As Michael Sayers says: Law Reform Commissions or Institutes “provide principled and imaginative new law, and are catalysts of change, responsive to the world around them and to the public they serve”.
It is time we recognise their role as moderators, modulators and mediators of change.
Shad Saleem Faruqi is Emeritus Professor of Law at UiTM