Second Sphere: The need for a law reform commission

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THE National Unity Consultative Council (NUCC), at its meeting of Oct 15, agreed to adopt a proposal on the establishment of a Law Reform Commission (LRC) as part of its report to the government.

This is one of four proposals by the NUCC Law and Policy Committee. The others are for a National Harmony Act, Constitution Literacy Campaign and National Unity Award. The Law and Policy Committee is chaired by Datuk Dr Mujahid Yusof Rawa, with Lim Chee Wee as his deputy. I am a member of that committee.

The LRC is not a new idea. It was mooted a long time ago by, among others, Professor Emeritus Datuk Dr Shad Saleem Faruqi, writing in 1979 in the Journal of Malaysian and Comparative Law. The NUCC committee was privileged to receive his advice on this proposal.

For decades, the need for a formal, independent institution to act as an initiation point for law reform had been highlighted by many observers. When a matter of vital public importance requires clarification or investigation to avert a nationwide crisis of confidence, it is the responsibility of the federal government and state governments to determine the method by which truth can best be established.

The problem that we face in Malaysia is the lack of an independent law commission to review the country’s existing laws and laws that will be enacted in future. Malaysia is one of the largest jurisdictions in the Commonwealth that does not have an independent law commission.

In December 2009, Prime Minister Datuk Seri Najib Razak announced the formation of the Malaysian Law Reform Committee (MLRC), chaired by Deputy Minister in the Prime Minister’s Department Datuk Liew Vui Keong. Among its members are Ira Biswas (representing the Malaysian Bar) and associate professor Dr Azmi Sharom (Universiti Malaya), both from whom the NUCC committee has also sought advice.

The MLRC is the most recent development in the LRC discourse. It is or was meant to complement the Law Revision and Reform Division (LRRD) of the Attorney General’s (AG) Chambers, which was established pursuant to the Revision of Laws Act 1968.

However, both the MLRC and the LRRD have limitations. In the case of the MLRC, it operates under narrow terms of reference, and lacks manpower and funding. Its existence is not protected by statute and it has suffered for a lack of public feedback.

Likewise, the LRRD is not really in the position to initiate its own review of existing or proposed laws, let alone propose their reform, because it can only begin to do so on the instruction of the AG or at the request of government agencies.

Hence, the crying need to revisit the proposal to establish the LRC.    

The NUCC committee proposes that the LRC be established by enacting a Law Reform Commission Act to ensure that the functions and powers of the commission are laid down in statute. This is important in order to prevent the commission from facing the same fate as the MLRC.

The LRC would review existing laws and propose amendments, as well as propose new laws as may be needed to modernise and simplify the legal framework to meet the changing needs of society. Its main features are proposed as follows:

The membership of the LRC should comprise full-time commissioners and full and part-time researchers. They should be of a varied background, and contribute to the inter-disciplinary nature of the LRC, for example, retired judges, lawyers, economists, sociologists and so on. This is to ensure the commission will not be too legalistic in its approach.

 The LRC should coexist and work closely with other government institutions, such as the Prime Minister’s Department (especially with the minister in charge of law), AG’s Chambers, Parliament, universities, research organisations and civil society.

Its methodology should be consultative, with an emphasis on real-life implementation. Public consultation and communication are essential to promote a sense of public ownership of the process of law-making.

The commission should publish an annual report that will be tabled before Parliament for debate.

To ensure its impartiality and independence, the commission should be funded by Parliament, via the establishment of a dedicated fund.

Now that the proposal for the LRC will be incorporated as part of the NUCC report, it is our hope that the government will form the LRC to periodically and effectively review the country’s laws so that they may evolve to match the needs and aspirations of the people.

Datuk Saifuddin Abdullah is CEO of the Global Movement of Moderates and former deputy minister of higher education. He is active on twitter: @saifuddinabd

This article first appeared in Forum, The Edge Malaysia Weekly, on October 27 - November 2, 2014.