Explainer: What does a law commission do and why?

 

Law Minister Datuk Seri Azalina Othman Said said that her proposal was still in its infancy and would only be brought to Cabinet next year. — Picture by Hari Anggara

KUALA LUMPUR, Dec 15 — On Monday, de facto Law Minister Datuk Seri Azalina Othman Said announced she would propose that the government set up a law commission independent of the Attorney General’s Chambers (AGC).

While she explained such a commission would be able to engage with talent from various fields to recommend legal reforms to the government, she said that her proposal was still in its infancy and would only be brought to Cabinet next year.

Malay Mail spoke to two lawyers and an academic to understand what such a commission would entail, who should head it and how it would benefit Malaysia.

What does a law commission do?

Lawyer Fahri Azzat said the function of a law commission would be to ensure that a country’s laws are regularly revised, updated, or created so that government administration runs smoothly.

“Many Commonwealth countries have law commissions. I think it is a mark of a country’s maturity and its forward-looking attitude to have a law commission,” he said.

Among countries with a law commission are the UK, India, Canada, and Australia — with the UK having the longest running commission from 1952, followed by India from 1955.

Magesan R. Ayavoo, a senior lecturer in University of Malaya’s Faculty of Law, said that Malaysian legislation must be adapted to emerging global changes such as issues relating to digital assets and currency, media, environmental issues, as well as food safety.

Lawyer Fahri Azzat pointed at the Evidence Act, Contracts Act and Specific Relief Act were all also legislated before Malaysia’s independence, in 1950. — Picture by Miera Zulyana

He added Azalina’s proposed commission would also function to weed out obsolete laws so that they can be reviewed for relevance.

“For example, the Sedition Act 1948. It was created before independence and there are already other Acts that cover the same issues such as the Communications and Multimedia Act 1998 and Printing Presses and Publications Act 1984,” he said.

Fahri pointed at the Evidence Act, Contracts Act and Specific Relief Act were all also legislated before Malaysia’s independence, in 1950.

“It is time to consider a wholesale review of them,” he said.

Who would sit on such a commission?

Lawyer K. Shanmuga said that law commissions are usually headed by retired judges or prominent academics.

“The rest of the commissioners are normally experienced lawyers — ideally with a mix of different experiences such as from the government sector, private practice and academia.

“They will be supported by a comprehensive team of experienced lawyers, non-governmental organisations, scientists, representatives from the business communities and others.

“A law commission normally does not consist of politicians at all,” he said.

Why is what we have now not enough?

Magesan explained that currently, if the government wants to propose a new law or amendment, the minister with jurisdiction over the issue would usually have to make the first move.

He or she would start by enlisting his ministry staff to write up the first draft of the bill — for example, the Anti-Sexual Harassment Bill 2021 was first drafted by the Women, Family and Community Development Ministry.

The first draft would then be passed to Cabinet for approval, upon which it would be passed to the AGC’s Drafting Division to be further developed.

Once the AGC is done, the respective minister would submit the Bill to Parliament.

Lawyer K. Shanmuga said a law commission normally does not consist of politicians at all. — Picture by Ahmad Zamzahuri

Alternatively, any MP can submit a Private Member’s Bill in Parliament; however, Magesan pointed out that it is up to the Parliament Speaker to decide on which Bills would get priority to be discussed first.

When asked if the current system works well, especially when it comes to reviewing existing legislation, Magesan said: “It works but the government is selective in its reviewing”.

“So, the important thing is that the law commission should not be parked under the AGC, so that they can act without fear or favouring the government of the day,” he said.

Fahri explained that the AGC is “essentially the government’s lawyer” and has no security of tenure.

“So, although he is supposed to be independent, he is politically constrained. He can be dismissed by the PM at any time,” he said.

Fahri also said that oftentimes, politicians do not have the qualities required for law making, which he said takes “time, experience, a lot of research and thinking”.

“A law commission will fill those roles and provide the relevant expertise, opportunity and authority to law making.

“It will ensure that the laws proposed are not only those of the government of the day but others of equally economic, social, or cultural importance,” he said. - malaymail