Should we bother with obsolete laws?

 

From Jason Chuah

It could not have gone unnoticed by the general reader that law and institutional reform minister Azalina Othman Said bemoaned the fact that we have 3,000 archaic and obsolete laws, and that we need to do something about it.

Regardless of whether the figure is accurate, the key issue is there are many outdated statutory laws that no longer serve our purpose.

For my sins, I have picked up a new hobby – I have been collecting old and archaic laws. The older and stranger, the better.

Of course, the good, responsible lawyer would want to see many of these laws updated to better reflect our societal concerns – from the Stamp Act 1949 to the once-lauded 

modern

 law, like the Human Tissues Act 1974.

Everyone has a statute or more which, to them, is screaming out for repeal or modernisation. Thus far the discourse has been very much about when a law is considered obsolete or irrelevant.

There are four possible outcomes, generally, for obsolete laws: revision to update the language but leaving the legal intent untouched; repeal; amend or reform; and do nothing.

The first three are not easy solutions. Revision is a delicate exercise, it must not cross into making law.

The Revision of Laws Act 1968 makes it plain that the law revision commissioner has no power to 

make any alteration or amendment in the substance of any law

.

Thus, revision of laws by changing the language of obsolete or archaic laws cannot result in changing the law to make it more relevant.

That being the case, it is right for the law revision commissioner not to change anything if he or she is unsure if it results in changing the content of the law. The default is not to change.

Repealing the law often requires the enactment of new law to fill the gap left behind. As to reform, this requires a parliamentary majority but even before we arrive at the point of tabling new legislation, the process of reform is expensive and expertise intensive.

Reform will necessarily involve paying experts to undertake a systematic review. That process can get contentious.

For example, those calling for the modernisation of our rape laws are bound to walk into a maelstrom. As a diverse society it is difficult for us to have a consensus as to how far modernisation should go.

Our Penal Code makes the offence of rape dependent on the act of penile penetration by a man on a woman. One modern proposition is to prescribe that women can also be guilty of rape.

Another is to provide that a man can commit rape without penile penetration. Yet, a third is to legislate against rape by one man on another. The gender issue, of course, is fraught with socio-cultural and ideological sentiments.

Parliamentary time is also a critical problem – when the government has a full legislative programme, reforming legislation may be difficult to fit in.

That leaves us with the fourth option – do nothing. This is unpalatable to many. However, archaic laws, which are curious and historical relics, might actually be innocuous.

Leaving them on the statute books is often neither here nor there. Are there good judicial reasons calling for action to tackle them?

For archaic colonial laws, the fiercely patriotic amongst us would wish to see the back of them.

It does not bother me as much. It’s like that benign, occasionally burping granduncle sitting at the far corner in the family dinner – harmless and perhaps a bit peculiar.

Nevertheless, there are archaic laws which are offensive to our way of life and these should really be dealt with and swiftly, preferably by Parliament.

Then, there is the third category of obsolete laws. These may not even be ancient laws but simply laws which have been overtaken by modern developments.

If something could be done about them, then good, but they are seldom at the top of any legislative agenda.

For example, it would be an oddly languorous government that would make precious parliamentary time to modernise the Innkeepers Act 1952, just to extend it to the likes of glamping and Airbnb.

One possible way to deal with this is granting to courts the authority to determine whether a statute or statutory provision is obsolete and whether it could be reviewed.

Our judiciary already has the power to strike down an unconstitutional law. The same legal logic, applied to obsolescence, could ensure that laws are interpreted first in a manner consistent with current jurisprudence.

For students of the common law, this is nothing radical. Indeed, that is how our common law develops. The courts could also be empowered to recommend a legislative provision to the government for amendment or repeal.

The object would be to let the courts keep anachronistic laws from governing us. That surely and rightfully should be a role for our judges. - FMT

Prof Jason Chuah is dean of the Faculty of Law, Universiti Malaya.

The views expressed are those of the writer and do not necessarily reflect those of MMKtT