8/6/2019 LAW Must Not Stand Still

1/3

Wednesday October 20, 2010

The law must not stand stillReflecting on the lawBy SHAD SALEEM FARUQI

All societies are dynamic and no law can make time stand still; it is a living growth and not a

changeless code.

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 should be so is not difficult to understand.

Antiquity: The proliferation of laws 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 lifes 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.

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 laws 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

issues which are notoriously difficult to tackle.

Economics: Economic growth requires legal prerequisites. In Western society there is a belief that

industrial and entrepreneurial development is linked with the rule of law and rights-based commercial

laws.

8/6/2019 LAW Must Not Stand Still

2/3

On the other hand, experience of Asia and Africa indicates that liberal markets 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.

Modalities: There is a multiplicity of ways to reform 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.

Parliament can enact new legislation or amend or repeal existing ones to meet emerging needs.

Sadly, it 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 we have several full-time and independent Law Reform Commissions, Law

Reform Committees, International Law Committees and Criminal Law Revision Committees. In

Canada they have a Law Reform Institute housed by academics, lawyers and judges.

The Malaysian investment in law reform skills and money is microscopic compared with the

investment in scientific research and development. The Attorney-Generals 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.

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 Commission or Institute 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 address these critical problems:

Constitutionalism: In the context of Malaysia we have the unique problem of a plethora of colonial

as well as post-Merdeka laws that were drafted by people schooled in the philosophy of

parliamentary supremacy. The task of revising our laws to make them constitutionally compliant is

one of our challenges.

8/6/2019 LAW Must Not Stand Still

3/3

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.

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

and to report to Parliament with recommendations.

Bureaucratic power: It may sound like an exaggeration but Malaysia is a bureaucratic state in

which un-elected 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 challenges are immense but the promises are beckoning.

> Shad Saleem Faruqi is Emeritus Professor of law at UiTM.