A PERTINENT question for the country’s democratisation project is how Malaysia formulates, amends, reviews and repeals laws. Specifically, it is about introducing a formal, participatory law-making process.
The introduction of this process is part of the proposal for the establishment of the Law Reform Commission by the National Unity Consultative Council’s (NUCC) law and policy committee, chaired by Datuk Dr Mujahid Yusof Rawa. (Its deputy chair is former Bar Council president Lim Chee Wee, and I am one of its members.) The NUCC approved the proposal for the establishment of a Malaysian Law Commission in its meeting on Oct 15, which will be included in its report to the government.
I have been sharing my thoughts on public participation in various discussions, most recently at a presentation on the reform of Parliament, with members of parliament, Maria Chin Abdullah of Bersih 2.0 and Syahredzan Johan of the Malaysian Bar Council. I also spoke about this idea at a forum on law reform organised by the human rights group, Suaram, in Penang, with Hannah Yeoh (Selangor State Assembly speaker) and MPs R Sivarasah and Liew Chin Tong.
Participatory law-making is an important element of a new political culture that builds on consensus and creates trust among all stakeholders in reviewing, amending and repealing existing laws. It also involves proposing new laws to replace outdated ones, and modernising and simplifying laws in order to meet the needs of contemporary society.
The rationale for participatory law-making is that Malaysians now have higher expectations of how Malaysian laws are made. People are rejecting the old ways of law-making for their many weaknesses: there is almost no public consultation, and neither are MPs sufficiently briefed and consulted. Sometimes, MPs do not even realise that a bill has been passed into law. Then there is the lack of useful reporting on parliamentary debates on controversial bills, of which the public will be unaware until it is too late.
This new and increased expectation that Malaysians have of their lawmakers and the law-making process is the result of a new and emerging landscape shaped by several discourses. These discourses are on what I call new realities, or the confluence of tech, social media, and new social consciousness movements.
These discourses are in turn leading to what I term the third phase of democracy that occurs in relatively young, independent nations such as Malaysia. This third phase comprises a new politics of integrity and progressive political thinking, supported by an innovative framework of governance.
This third phase of democracy is beginning to happen here, now. It is giving rise to a vibrant new middle ground of cosmopolitan Malaysians who have a sophisticated view of their government, and who are offering new approaches to a better tomorrow.
Their new expectation calls for wider and deeper public consultation by government. This will only be realised if four elements are fulfilled: proper representation (stakeholders select their representatives to a consultation); widespread and meaningful participation (genuine involvement and discussion); transparency (the public has the right to know what was discussed); and impact (the weightage of their contribution to a decision).
To come up with the framework of the participatory process, I usually use two examples.
The first is the experience of Denmark, which has a tradition of deeply anchored consultation with key stakeholders, as well as within government itself. Its standard procedure for making regulations includes prior, formal public hearings and public consultation before a draft law is tabled before parliament. These procedures are described in the Guidelines on Quality of Regulation 2005 of Denmark’s ministry of justice.
Its contents clearly state the process that should be adhered to, which is divided into three main steps. First, is the formation of a preparatory committee to gather a wide a range of stakeholders with a significant interest in the law being proposed. The preparatory committee discusses the proposed law in detail, including coming up with a draft bill. Second, the draft bill is published online on a consultation web portal inviting public comments. The third step comes after all public feedback is taken on board and weighed, and the relevant minister then presents the bill in parliament.
The second example I use to illustrate how participatory law-making might work is the process by which the NUCC proposed the National Harmony Act. It began with the NUCC Law and Policy Committee preparing a draft bill, which was then publicly discussed at a series of roundtables and in newspaper articles. From the feedback gathered, the bill was improved.
Recently, the NUCC agreed on the form and contents of the proposed bill, which now awaits the government’s decision. Should the government agree on the bill, the Attorney General (AG) will then prepare the actual draft of the bill to be presented in Parliament for debate. The NUCC proposes that the bill be debated in a parliamentary select committee (which needs to be established) before the minister in-charge presents it to Parliament.
Based on these two examples, we could, as a start, prepare guidelines (as with Denmark) for a participatory law-making process that comprises of the following steps: ideation/concept stage; discussion by a committee of relevant stakeholders; public consultation (face-to-face and online); Cabinet decision/private bill; final draft of bill by the AG; debate in a parliamentary select committee; minister tables bill in Parliament.
The question is: who will champion these guidelines?
Datuk Saifuddin Abdullah is CEO of the Global Movement of Moderates and a former deputy minister of higher education. He is active on twitter: @saifuddinabd.
This article first appeared in Forum, The Edge Malaysia Weekly, on November 17 - 23, 2014.