To Prime Minister Anwar Ibrahim: We are members of civil society who seek your consideration of the need to amend the process by which laws are written and revised in our country.
We are writing this in an open letter to encourage dialogue and more voices from the ground to be heard. We believe this request is in the spirit of “Malaysia Madani” (Civil and Compassionate Malaysia).
The current process by which laws are written and revised lack transparency, accountability and professionalism. Many of us have been involved in the process of helping to draft inputs for bills for new legislation or amendments to existing legislation.
However, the final outcome is often a “watered-down” version of original civil society aspirations and is not aligned with the international conventions that our nation has ratified.
This letter is not about laws on national defence or security. And, neither is it about international or domestic commerce and trade. This letter is about laws on social wellbeing that are of public interest, especially those related to children, persons with disabilities, and women.
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They include, for example, the Child Act, the Sexual Offences Against Children Act, the Children’s Commission Bill, the Persons with Disabilities Act, the Anti-Sexual Harassment Act, the Domestic Violence Act, the Anti-Sexual Harassment Act, the Senior Citizens Bill and the proposed constitutional amendments on citizenship for children born overseas.
These laws are of vital importance to the wellbeing and rights of vulnerable groups in the community and hence of keen public interest.
Please allow us to summarise what often happens in the process of writing and revising these laws:
To date, it is civil society that advocates for a new law or amendment of an existing one. The advocacy may arise from pressing needs in society and available data. The need could be because existing legislation is outdated and no longer adequately acknowledges or addresses emerging issues and changes in society. The advocacy process could be long drawn and take anything between five to 15 years.
Once a cabinet decision has been made to introduce new legislation or revise an existing one, some attempt is made to engage stakeholders. There may be workshops or town hall sessions to hear opinions and, at times, online links to digital or written feedback. Often, genuine, adequate and widespread consultation is limited, despite the availability of relevant civil society organisations and advocates, lawyers who have worked on the issue and especially persons with lived experience. Many civil society organisations and interested parties are not invited or made aware of these dialogue sessions and hence their views are not sought and considered. Most meetings are face-to-face with large numbers; this makes it very difficult for feedback and expensive for those who live some distance away to travel just to be able to offer a few words.
The relevant ministry or government agency then forms a working group or special project team to draft the legislation or amendments. There are issues regarding the selection criteria for the inclusion of members of such working groups or special project teams: the credibility of the criteria per se and a lack of transparency of the selection process. They are often ‘heavy’ with civil servants from different ministries and very weak on persons with lived-experience and key advocates. Only occasionally has the relevant ministry engaged key stakeholders and meaningfully involved them in the process. Such issues undermine public confidence.
During the process of drafting, and once a draft has been completed, there is no provision for enabling the wider community to review that draft and contribute comments to strengthen it. Strangely, the practice in Malaysia is to place the entire process under the Official Secrets Act (OSA). Accordingly, the members of the working groups or special project teams are made to sign an OSA undertaking. This totally militates against the spirit of Malaysia Madani and is hard to understand for public interest legislation that relates to children, women and other vulnerable groups.
The legislation is then sent to the Attorney General’s Chambers for review. Even if we have good draft legislation put together with the help of civil society groups, at the Attorney General’s Chambers, the draft is heavily revised, at times without consideration of the background issues. This process has yielded legislation that, at times, cannot be enforced, or is of limited scope and value.
Neither the working group or the special project team that drafted the legislation nor the general public is allowed to view the final draft until it is tabled in Parliament. This is why we often have an outcry from civil society organisations and other MPs at this stage. The final product often bears little resemblance to what had originally been envisaged for addressing genuine needs.
Allow us also to offer some suggestions for improvement.
We need to speed up the process of identifying legislation for amendment and for putting in place new acts. We could take a leaf from the process of Taiwan’s digital democracy, which has broad citizen participation and is fast and fair. The government there has an online platform where anyone can file a petition. Petitions that gather at least 5,000 signatures are attended to by dialogue with relevant ministries to explore ways to incorporate it into policymaking. India also practises digital democracy in enabling online submission of comments to draft legislation, for example, in the case of its Rights of Persons with Disabilities Act 2016 – the bill was posted online and online comments were welcome, in addition to many other means for seeking nationwide views at all levels, including at grassroots and village level.
The government needs to have an ongoing, transparent and comprehensive feedback mechanism – an all-of-society approach – to garner input for any proposed legislation or amendments to legislation. This feedback process should not be limited to a few bengkel (workshops) but offer numerous opportunities and avenues, including multiple online town halls to enable nationwide participation. Those in locations far away from any bengkel venue should be able to smoothly participate. Proper attention needs to be given to the correct technical pre-meeting arrangements for ensuring the sound quality for online participants. The feedback mechanism may include, but not be limited to, the following: easy access for people with diverse disabilities in languages and formats that diverse disability groups can access and understand; a “turun padang” (going-to-the-ground) approach for rural and marginalised communities; and online written submissions. Feedback opportunities and timelines should be widely disseminated via social media.
It is critical that any working group or special project team established by the government to amend existing legislation or draft new legislation includes a broad base of people who would include those with lived experience, key advocates, including those with critical views, relevant civil society organisations and the legal fraternity. We need to fully embrace the principle of “Nothing about us, without us.” The government should follow the UN standard of “open calls for expressions of interest” to civil society organisations, advocates and the general public to become members of any working groups or task forces to draft legislations or amendments.
During the entire process of drafting legislation, it should be made accessible online to the public. We do well to learn from India on how it has benefited from open citizen engagement, with provision for feedback at every stage. The government of India has a citizen-centric platform that empowers people to contribute towards good governance (MyGov: An Overview | MyGov.in). Almost all Indian government departments leverage the MyGov platform for citizen engagement activities, consultations for policy formulation and for dissemination of information to citizens for various government schemes and programmes. Such an approach enhances societal maturity, offers ownership and enables wide voter support of any legislation, policies and implementing rules and regulations that are adopted.
The Attorney General’s Chambers must not be the sole and final arbiter of any legislation drafted. We recognise that the Attorney General’s Chambers plays an important role but it must also respect the work of those entrusted with drafting the legislation. In addition, the Attorney General’s Chambers must recognise that we need to revise our laws to be in line with the aspirations of international conventions which Malaysia has ratified.
The final bill, when tabled in Parliament, should be made available to MPs at least two weeks prior to it being discussed to enable time for them to digest the contents and have consultations with others.
Finally, we need to develop and implement a new approach to decision-making that places children’s needs, wishes and outcomes at its heart, and involve children and young people every step of the way, including in the legal reform process. The same applies to women and the disabled.
We appeal to you as our prime minister to actualise law reform in Malaysia. As we aspire to create a society of respect and trust, it must start with the government and the civil service respecting and trusting the people.
We extend our prayers and blessings to you in view of the heavy responsibility that you shoulder on behalf of all of us.
Signatories:
- Dato’ Dr Amar-Singh HSS, consultant paediatrician; child-disability rights activist; advisor, National Early Childhood Intervention Council; member, The OKU Rights Matter Project
- San Yuenwah, person with invisible disabilities; member, The OKU Rights Matter Project
- Srividhya Ganapathy, co-chairperson, CRIB Foundation (Child Rights Innovation & Betterment)
- Yana Karim, person with dynamic disabilities; disability rights advocate; co-founder, Boleh Space
- Anit Kaur Randhawa, parent advocate; member, Harapan OKU Law Reform Group; member, The OKU Rights Matter Project
- Ng Lai-Thin, care partner and project lead, National Early Childhood Intervention Council; member, The OKU Rights Matter Project
- Cathryn Anila, founder, Vanguards4Change
- Kaveinthran, native blind person, disabled human rights activist
- Women’s Centre for Change, Penang (WCC)
- Sharmila Sekaran, child protection and wellbeing advocate
- Jeannie Low, Play Unlimited
- Bathmavathi Krishnan, former senator representing persons with disabilities at the Senate (2013-2019)
- Malaysian Association of Sign Language Interpreters (MyAsli)
- Sahanah Kathirvelu, human rights officer, Human Rights Commission of Malaysia (Suhakam)
- Family Frontiers
- Boleh Space, disabled-led Disability Rights Advocacy Movement
- Hasbeemasputra Abu Bakar, disabled disability advocate, Siuman Collective
- Vicky Chan, deafblind advocate; member, Harapan OKU
- Anthony Chong, deaf person; advocate; co-founder and secretary, Deaf Advocate and Wellbeing National Organisation, Malaysia
- Meera Samanther, former president, Association of Women Lawyers (AWL) and Women’s Aid Organisation (WAO); executive committee member, AWL; member, Harapan OKU Law Reform Group; parent advocate; disability and gender activist
- Malaysian Association of Social Workers
- Kemban Kolektif
- Association of Women Lawyers (AWL)
- Malaysian Women’s Action for Tobacco Control and Health (MyWatch)
- Pertubuhan Kebajikan Vivekananda Rembau, Negeri Sembilan
- Hanizan Hussin, Persatuan Sindrom Down Malaysia
- Childline Foundation
- Association of Toy Libraries Malaysia
- Alvin Teoh, parent of a total blind child; advisor, National Family Sup;ort Group for Children and People with Special Needs
- Annie Omg Hwei Ling, deaf advocate; president, National Organization of Bahasa Isyarat Malaysia Instructors (NowBim)
- President, Reproductive Health Association of Kelantan (ReHak)
- Persatuan Siswazah Wanita Malaysia
- Persatuan WeCareJourney
- Moses Choo, blind person; former member, Majlis Kebangsaan Orang Kurang Upaya (2016-2021); independent consultant on ICT for blind persons and persons with low vision
- Sharifah Tahir, care partner; advocate; Teepa Snow Positive Approach to Care© certified independent consultant, trainer and mentor; founder, UMI-UniquelyMeInitiatives
- Sisters in Islam
- Sarawak Women for Women Society
- Azira Aziz, lawyer
- Engender
- Francis Johen Ak Adam, advisor, Pertubuhan Orang Cacat Sarawak; former commissioner, Suhakam (2013-2019)
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