WHEN Law Minister Wan Junaidi Tuanku Jaafar said there is an immediate need for law reform, it needs to be appreciated that law reform is a serious matter. In fact, it is too serious a matter to be left to the government alone.

Reform is a process, and in law, it is the process of analysing current laws and advocating and carrying out changes in a legal system, usually with the aim of enhancing justice or efficiency.

Changes to the law may be ad hoc, piecemeal or comprehensive. Comprehensive revisions usually result from recommendations made by an independent law reform commission (LRC).

Let’s take Article 8 of the federal constitution, for example. The Article generally prohibits discrimination against a person or class of persons, unless there is a rational basis for such discrimination.

In 2001, the word “gender” was inserted in Article 8(2) to comply with the country’s obligations under United Nations Convention on the Elimination of All Forms of Discrimination against Women (Cedaw) and reflect its commitment to eliminate discrimination against women.

Cedaw, which is based on the principles of equality and non-discrimination, has been ratified by more than 180 countries, including Malaysia.

One can clearly see that the amendment seeks to achieve the aim of law reform, i.e. enhancing justice, for women. The aim is noble.

In fact, high court judge Akhtar Tahir gave effect to the aim by ruling that children born overseas to Malaysian mothers are entitled to citizenship by operation of law. The learned judge ruled that the word “father” in Section 1(b) of Part II of the Second Schedule of the federal constitution includes “mother”. He gave a “harmonious” reading of the relevant constitutional provisions, namely Article 14(1)(b), the aforementioned Section 1(b) and Article 8(2).

The majority decision in an earlier Federal Court case of CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors(2021), however, had ruled that since the federal constitution discriminates between a father and a mother, the court cannot alter that discrimination.

Therefore, one can say that the amendment to Article 8(2) was ad hoc and piecemeal. It was not a comprehensive revision of the law to eliminate discrimination against women or revise gender-biased law.

As it is, the federal constitution contains another provision that discriminates between a father and mother – Article 161A (special position of natives of states of Sabah and Sarawak), where Clause (6)(b) states that “native” means “in relation to Sabah, a person who is a citizen, is the child or grandchild of a person of a race indigenous to Sabah, and was born (whether on or after Malaysia Day or not) either in Sabah or to a father domiciled in Sabah at the time of the birth”.

This informs us that if the amendments to the federal constitution had been comprehensive, it would have achieved the aim of reforms at achieving justice for women. And comprehensive revisions usually result from recommendations made by an independent LRC.

In short, the country needs an independent LRC.

An independent LRC, which undertakes research and reasons itself based on such research, has much to contribute to law reform.

More than 50 years ago, R.J. Sutton, then fellow at Harvard Law School, identified how an independent LRC can outline the basic criteria that must be met before a proposed rule of law can satisfactorily operate, and recommended the rejection or re-examination of proposals that do not meet the criteria.

It can also clarify the arguments put forward by disputing sides and verify the factual assertions that have been advanced in support of them. It can supply an impartial account of the history of the existing legal position, which a long and heated debate might have obscured. (see R.J. Sutton, The English Law Commission: A New Philosophy of Law Reform (1967) 20 Vanderbilt Law Review, 1009)

Former Court of Appeal judge Mohd Hishamudin Yunus has also lent his thoughts on an independent LRC. He identifies seven benefits of an independent LRC, namely quality of work; respect and confidence; the best brains; support of public officials, academics, experts and members of the public alike; expertise; focus; and, continuity. His thoughts can be read here.

It is hoped that former deputy Dewan Rakyat speaker Azalina Othman Said, the newly minted adviser to the prime minister on law and human rights, can spare time to read Hishamudin’s Benefits of an Independent Law Reform Commission.

An LRC should be on her advice list to the prime minister. – October 3, 2021.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.