Towards more open legal reform

Brave New World (The Star)
19 February 2014

What’s needed is a properly constituted and funded commission, with public participation.

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ABOUT four years ago, I was invited to sit on a government committee called the Malaysian Law Reform Committee (MLRC). Its term of reference was rather vague: to review and suggest changes to outdated laws.
The members of the MLRC were mainly Barisan Nasional legislators and government lawyers with one academic (me) and one representative from the Bar.
I never had any illusions that we were going to be making proposals to revoke the Sedition Act or anything like that but still, even without looking at our more controversial laws, there is plenty that could be done.
It did not take us long to realise that we were out of our depth. There is only so much a committee, consisting of part-time members who meet every now and then, can do.
The MLRC also did not have any real authority and hence, if I am to be brutally honest, we were not taken particularly seriously.
To give credit where credit is due, V.K. Liew, (who was chairman before the last general election), was of the opinion that the MLRC was not working and what was needed was a proper Law Reform Commission.
This was supported by the majority of the committee and the current chairman, Nancy Syukri, also shares this view.
What difference would a commission make? A lot, if it is constituted properly.
Of course, it has to be a statutory body answerable to Parliament. And if it is decided that one will be created first and foremost, the commissioners must be independent from the Government.
They must, in my view, not only be independent, but they must be seen to be independent. Therefore, the selection process of the commissioners has to be transparent with input from as many relevant stakeholders as possible.
This country has a trust deficit, and if we create a commission where only one person has the final say as to its make-up, then it would mean the whole exercise starts under a fog of suspicion and the work of the commission would be undermined by a lack of public trust right from the beginning. This is counter-productive for everyone involved.
The commission must also be properly funded with enough money to ensure that high-quality staff (both research and administrative) are hired. Experts can be and must be hired on an ad hoc basis as researchers and advisers when there is a need for it.
The commission could research on existing laws or propose new laws based on suggestions by the Government and, very importantly, on their own accord if they so wish. This independence is vital because the commission’s main ethos has to be about the improvement of the law for the good of the nation and to do this properly they must not be beholden to anyone.
The operation of the commission has to include clear provisions for openness and for public participation. Reports must be published and made available to all. And it is key that there are provisions that a report by the commission is discussed in Parliament. This is the ultimate form of accountability.
You see, it is not as if laws are not being changed or new ones made just because we don’t have a commission. It happens all the time.
Mostly, it is done by the Attorney-General’s Chambers or by individual ministries. This is well and good but I submit that when laws are changed or made in this manner, it is done by agencies with their own agendas; a commission would have a much broader concern which is about the good of the whole nation.
Furthermore, in the current situation, any public consultation is done at the discretion of the A-G’s Chambers or the ministries and more importantly, perhaps, if their suggestions are not accepted by the Government of the day it disappears just like that.
Recommendations of the proposed commission are open to the public and discussed in Parliament.
So even though the Government still has the discretion whether to accept a suggestion from the commission or not, it has to be discussed in Parliament and in that way reasons must be given and this would be open to public scrutiny. It is hard to reject a good plan if you have no good reasons for it.
What has to be remembered is that all the usual mechanisms for legislative changes, suggestions from ministries and the A-G’s Chambers and even private members Bills will continue as before.
The commission does not replace anything. Instead it supplements and adds a further body with which law review can be done.
Its advantage is its independence which should earn it great public trust; its openness which means greater democratic participation and its answerability to Parliament which means it forces proper and transparent debate on its suggestions.
It is time that a more open and independent method of law reform is undertaken here. A non-partisan organisation with intellectual independence, specialisation, academic rigour and public accountability is surely the best way to achieve that.