THE LAW MUST NOT STAND STILL

Law is a living growth and not a changeless code. All societies are dynamic and no law can make time stand still. Law Reform Commissions or Institutes can provide principled and imaginative new law. They can be 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.
*This is an unedited original manuscript.

INTRODUCTION

Law is an indispensable attribute of every civilised society. Formulating, interpreting and enforcing a simple, fair, modern and efficient system of law is a challenge as tall as the trees, as deep as the seas. Why this is such a formidable challenge is not so difficult to understand. 
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Antiquity:  There is a proliferation of laws and this is matched only by their obsolescence. Life is larger than the law and no formal system of norms can cope with the complexities, probabilities and pitfalls that accompany life’s endeavours.  All societies are dynamic and no law can make time stand still. Law is a living growth and not a changeless code. The felt necessities of the times demand a constant reform of legal instruments to cope with social and economic realities. Laws and institutions must go hand in hand with the progress of society, technical innovations and increasing globalisation.

Gap between form and functioning:  Behind laws stand purposes. Beyond laws stand consequences. Even the best-intended laws often lead to a coterie of undesired and undesirable results. Unscrupulous people make use of inevitable loopholes in the law. Interpreters often pay attention to the law’s letter and not its spirit.  If social and economic data is gathered, as it always must be, a wide gap between theory and reality is always discernible. Periodically, this gap needs to be narrowed by law reform.

Structural problems:  Most laws reflect the will of the strong. Whether it is family law, land law, constitutional law or commercial law, it reproduces the realities of power in society. As societies democratise, new power structures emerge and pressures build up for re-adjustment of legal standards. Many institutional arrangements like the adversary system of justice, the Torrens System of land titles and the privatisation of critical public services lead to many inequities. They involve structural, systemic issues which are notoriously difficult to tackle.

Economic growth:  Economic growth requires legal prerequisites. In Western society, there is a belief that industrial and entrepreneurial development is linked to the rule of law and rights-based commercial regulations. 

On the other hand, the experience of Asia and Africa indicates that liberal markets often produce harsh outcomes and create problems of distributive justice. Legal transplants from the West do not always work.  A “basic needs” approach is necessary.

Whatever growth model one adopts, the need for proper legal regulation is unavoidable and this is the province of law reform.

AREAS RIPE FOR REVIEW

Constitutionalism:  Despite 61 years of Merdeka, constitutional literacy is weak and constitutional patriotism is non-existing. There is a surfeit of pre-Merdeka and post-Merdeka laws that are blatantly unconstitutional, that confer absolute, subjective powers on the executive and shield these unlimited powers with ouster clauses. We have the unique problem of a judiciary, a civil service, the police force and an Attorney-General’s office schooled in the English philosophy of parliamentary supremacy. Such a  philosophy has no legal basis here because our Constitution’s Article 4(1)[1] say clearly that “this Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.” Article 4(1)[2] is backed by Article 162(6)[3] which permits the courts to modify or nullify any pre-Merdeka law that falls foul of the supreme Constitution. Unfortunately, judicial review of legislative enactments on constitutional grounds is not a common occurrence in this country. The task of revising our laws to make them constitutionally compliant is one of our critical challenges.

Prioritisation:  The whole body of law stands potentially in need of reform. We need to give preference to areas that will alleviate the plight of the marginalised, the poor, the weak, the needy, the small-time businessman, the part-time worker, the aged and the handicapped. We need to ensure sustainable growth, social justice and environmental protection. Low-cost housing, credit for the poor, consumer protection, and the plight of strata title holders, abandoned wives and children, the homeless and the aborigines call for attention.

Monitoring of implementation:  Many criminal laws catch flies but let the hornets go free. Credit institutions open their coffers to the rich and close their hearts to the poor and the needy. Justice is not in legislation but in proper administration. All Bills and subsidiary legislation must include a monitoring mechanism that allocates responsibility on stakeholders to monitor the implementation and working of the law. The appointed monitors must be required to periodically report to Parliament with recommendations on improving the efficacy of the law.

Bureaucratic power:  It may sound like an exaggeration but Malaysia is a bureaucratic state in which unelected civil servants wield so much power that they are able to frustrate legislative reforms and to delay or defeat government policy. How to tame the bureaucracy and make it responsible and responsive is a challenge.

Limits of the law:  Law reform is a journey, not a destination. It needs continuity. It requires sustained financial support. It must be backed by legal literacy. In some areas like gender equality, its benign effect will not be felt unless legal reforms are accompanied by cultural and psychological changes.  The socio-economic, cultural and religious pre-requisites for gender equality must be borne in mind.  

MODALITIES FOR REFORM

The Malaysian investment in law reform skills and money is microscopic compared with the investment in scientific research and development. The Attorney-General’s Office has a law reform unit. Ministries often appoint law reform committees on an ad hoc basis. Once in a blue moon, Parliamentary Committees invite public participation in law drafting. NGOs make valiant attempts to draft and submit legal proposals, mostly without much success.

There is a multiplicity of ways to reform the law. 

The judicial technique: In all common law countries judges expand the horizons of law by a creative, holistic interpretation of the seamless web that constitutes the law. Judges can keep the streams of law flowing and brush in moral colours to the legal canvas by a creative interpretation of the law. Most Malaysian judges shun this challenge. Another discouraging factor is that judicial reform, whenever it takes place, is piecemeal and dependent on the accident of relevant litigation.

Parliament-initiated reform: Our Parliament can enact new legislations 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 and a very passive view of its constitutional role, our Parliament is content to play second fiddle to the executive in law-initiation. Parliament  also lacks legal expertise. Nor does it have institutional support mechanisms. To assist parliament in its constitutional task and in recognition of the fact that law reform is too mammoth a task to be handled by one person or institution, many countries have set up multiple institutional processes to divide and disperse the job.

In the UK and Australia, they have several full-time and independent Law Reform Commissions,[4] Law Reform Committees,[5] International Law Committees[6] and Criminal Law Revision Committees.[7] In Canada, they have a Law Reform Institute housed by academics, lawyers and judges.

Reform by the executive: The Attorney-General’s Office has a special law revision and law reform division.  A few years ago, the AG’s Chamber was instrumental in setting up the International Centre for Law & Legal Studies (I-CeLLS[CR1] ) to carry out in-depth research on issues of priority at the domestic, regional and international levels.[8] Individual Ministries often appoint ad hoc committees to draft legislative proposals. Statutory bodies like SUHAKAM generate scintillating proposals.

Role of NGOs: 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 to satisfy the demands of law reform in a modern society.

Role of Law Faculties: The Law Faculty at the University of Malaya, under the Deanship of Dato’ Assoc. Prof. Dr. Johan Shamsuddin, has proposed that the academic expertise of the UM Law Faculty can be employed to identify critical areas for law reform and to prepare working papers on the substance and methodolgy of growth and change in the law.      

Law Reform Commission: Given the magnitude of our problem and the dynamism of our age, we need a full time, independent Law Reform Commission or a Law Reform Institute that can act with initiative and not just react to pressures. The Government’s acceptance of the proposal to set up a Law Reform Commission or a Law 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 organizations including the Bar Council. I had written about setting up a Malaysian Law Reform Commission as early as 1979 in the University of Malaya’s Journal of Malaysian & Comparative Law.[9]

AN INDEPENDENT LAW REFORM COMMISSION

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.

Justification for an independent commission: An independent Law Reform Commission or a Law Reform Institute, with a 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 federal subsidiary legislations. At the state level, due to our federal system, the picture is more complex and crowded. For example, on local government in Petaling Jaya alone there are nearly 60 pieces of subsidiary regulations!

Some Acts of Parliament violate the supreme Constitution and its cherished human rights 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 globalization 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, i.e. bringing many similar statutes under one broad generic heading. For example, contract,[10] sales of goods[11] and hire purchase[12] could well come under one consolidated Commercial Code. The variety of laws on education[13] (and there are about 17 of them) could well be harmonized and put under one cover.

Characteristics: The Law Reform Commission or Institute must have the following characteristics:

• It must be independent.
• It must have expertise, permanency and a full-time job.
• Its approach must be inter-disciplinary, consultative and implementation-minded.
• It must be given delegated legislative authority, subject to disallowance by Parliament. 
• The Commission or Institute must prioritise and address some pressing problems in unique areas of the law.

Membership: The Commission when appointed must exhibit some essential characteristics. It must be independent of the executive so that it can operate outside the political agenda of the government of the day and as an independent voice in the community. Its members must be drawn from all sections of the legal community including the judiciary, the Bar, the academia, the AG’s office and law-trained persons serving as legal advisors to 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 members.  A matter worthy of consideration is the role that law faculty staff members and final year law students can play in the research by the Commission and its participatory links with societal groups affected by the law in question.   

Approach: 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. Decisions in which people participate are decisions they are likely to respect.

Aims: The Commission’s aim should be not only to update and modernize but also to simplify and localize 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. The remedial aspects of the law must not be ignored. 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.

Transformative role: 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. 

All in all, despite the financial, political, theoretical and practical limitations on the role of law reform agencies; and despite the danger of a volatile relationship between them and the government, a student of legal history cannot fail to note that institutional law reform has been a major innovation in the legal world since the 1960s.  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.

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Written by Prof Emeritus Datuk Dr Shad Saleem Faruqi, Tunku Abdul Rahman Chair, Faculty of Law, University of Malaya.

Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the views of the University of Malaya Law Review, and the institution it is affiliated with.

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Footnotes:​
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[1] Malaysia Constitution, Art 4(1).

[2] See footnote 2 above.

[3] Malaysia Constitution, Art 162(6).

[4] Law Commissions Act 1965 (UK)

[5] [1952] 96 Solicitors Journal 418

[6] International Law Committee, home page, The Law Society of New South Wales, 24 Oct. 2018 <http://www.lawsociety.com.au/legal_communities/NSW-young-lawyers/committees/international-law>

[7] Undersecretary of the State for the Home Office Hansard 2006 (UK)

[8] International Centre for Law and Legal Studies, International Centre for Law and Legal Studies, Attorney General’s Chambers of Malaysia <i-cells.agc.gov.my/index.php?option=com_content&view=article&id=22&Itemid=22&Itemid=27>

[9] (1979) 6 JMCL 339

[10] Contracts Act 1950 (Act 136)

[11] Sales of Goods Act 1957

[12] Hire Purchase Act 1967

[13] See Education Act 1996 (Act 550); Private Higher Educational Institutions Act 1996 (Act 555); National Council on Higher Education Institution Act 1996 (Act 546); Malaysian Qualifications Agency Act 2007 (Act 679); Universities and University Colleges (Amendment) Act 1996 (Act A1342); National Higher Education Fund Corporation Act 1997 (Act 566); National Higher Education Fund Corporation (Amendment) Act 2000; Education (Amendment) Act 2009 (Act A1341); Private Higher Educational Institutions (Amendment) Act 2009 (Act A1352); Regulations of Education (Special Education) Act 2013; MARA Institute of Technology (Amendment) Act 2017 (Act A1537).

 [CR1]I referred to the website of I-CeLLS.