Introduction
The journey of a legislative proposal from a policy idea to a binding Act of Parliament is a cornerstone of any democratic state governed by the rule of law. In Malaysia, this process is theoretically designed to be a meticulous, consultative, and deliberative journey, ensuring that laws are not only constitutionally sound but also reflect societal needs and expert opinion. The Federal Constitution provides the foundational framework, vesting legislative power in the bicameral Parliament, comprising the Dewan Rakyat (House of Representatives) and the Dewan Negara (Senate), and the Yang di-Pertuan Agong (the King) (Federal Constitution, Art. 44). This assignment will focus on the crucial initial stage of this process: the formulation and drafting of a Bill before it is formally introduced to Parliament. It will argue that while the ideal pre-parliamentary process champions comprehensive stakeholder consultation and meticulous legal drafting, the practical reality is often characterised by executive dominance and a lack of public transparency. This gap between theory and practice will be illustrated through the contemporary examples of the proposed federal Freedom of Information (FOI) Bill and the ongoing discourse surrounding a comprehensive Public Procurement Act, highlighting criticisms from civil society organisations.
The Theoretical Standard: A Consultative and Rigorous Pre-Parliamentary Stage
In principle, the conception of a new law in Malaysia is a bottom-up and consultative process. The need for legislation may arise from various sources, including government policy objectives, public demand, judicial decisions highlighting a lacuna in the law, or recommendations from Royal Commissions of Inquiry. The relevant ministry responsible for the subject matter takes the lead in developing the legislative proposal (Faruqi, 2008).
The ideal first step involves the ministry undertaking extensive research and policy development. This includes conducting feasibility studies, impact assessments, and comparative analyses of laws in other jurisdictions. A crucial component of this phase is stakeholder consultation. This is intended to be a wide-ranging dialogue involving not just government agencies but also experts from academia, industry bodies, professional organisations, non-governmental organisations (NGOs), and the general public. The aim is to gather diverse perspectives, identify potential problems, and build consensus around the proposed policy. This consultative approach is seen as vital for creating effective and legitimate laws that command public confidence and are practical to implement (Faruqi, 2008).
Once the ministry has formulated a clear policy, it drafts a Cabinet Memorandum outlining the proposal's objectives, key provisions, and financial implications. This paper is then circulated to other relevant ministries and government agencies for their feedback. After inter-agency consultation, the proposal is presented to the Cabinet for approval in principle. The Cabinet, as the supreme executive body, collectively decides whether to proceed with the legislation (Harding, 2012).
Upon receiving Cabinet approval, the proposal is formally sent to the Attorney General's Chambers (AGC). The AGC's Drafting Division, staffed by legally trained civil servants known as draftspersons, is tasked with the technical and specialised work of translating the approved policy into the precise and unambiguous language of a legislative Bill (Attorney General's Chambers, 2021). This is a rigorous process that involves ensuring the proposed Bill is consistent with the Federal Constitution, harmonises with existing laws, and accurately reflects the government's policy intentions. The draftspersons work closely with the sponsoring ministry to refine the text. The final draft, known as a Bill, is then submitted back to the Cabinet for final approval before it is ready to be tabled in Parliament. This entire pre-parliamentary process is, in theory, a sequence of checks and balances designed to produce well-considered, professionally drafted, and democratically vetted legislation.
The Practical Reality: Executive Centralisation and Legislative Secrecy
Despite the theoretical framework, the practical reality of law-making in Malaysia often deviates significantly from this consultative ideal. The Malaysian political system, while based on the Westminster model, has historically exhibited a strong concentration of power within the executive branch, particularly the Prime Minister's Department and the Cabinet (Welsh, 2009). This executive dominance profoundly influences the pre-parliamentary stage, often transforming it into a top-down and opaque process.
Policy formulation, rather than being a broad consultative exercise, is frequently centralised within the confines of the sponsoring ministry and the Cabinet. Major policy decisions are made by a small group of ministers and senior civil servants, with limited external input. This is partly a consequence of the political culture and the strength of the governing coalition, which can push through its legislative agenda with minimal resistance (Case, 2017). Consequently, stakeholder consultation, if it occurs, can be selective or perfunctory—a box-ticking exercise rather than a genuine dialogue. Ministries may choose to consult only with ‘friendly’ stakeholders who are unlikely to offer significant opposition, while critical voices from civil society or opposition groups are marginalised.
A more significant issue is the pervasive secrecy that often shrouds the drafting process. It is common practice for Bills to be treated as official secrets until the moment they are formally tabled in Parliament for the First Reading. This means that the public, the media, civil society organisations, and even opposition Members of Parliament (MPs) are denied any opportunity to see or scrutinise the text of a proposed law before it enters the formal legislative process. The First Reading itself is a mere formality where the title of the Bill is read out, with no debate on its substance (Parliament of Malaysia, 2021).
This lack of a pre-legislative scrutiny mechanism means that the first opportunity for substantive public debate occurs during the Second Reading in the Dewan Rakyat. By this stage, the Bill has already been approved by the Cabinet and reflects the government's fixed position. The time allocated for debate in Parliament is often limited, and the government's majority usually ensures the Bill's passage with few, if any, amendments. This practice severely curtails the potential for meaningful public participation and parliamentary deliberation, reducing the legislative process to a rubber-stamping exercise for executive decisions (Hutchinson, 2014).
Real-World Context: Criticisms of the Freedom of Information (FOI) Bill
The ongoing development of a federal Freedom of Information (FOI) Bill provides a compelling case study of the tensions between the theoretical ideal of consultation and the practical reality of executive-led drafting. For years, civil society groups have advocated for a robust federal FOI Act to replace the restrictive Official Secrets Act 1972, arguing that transparency is essential for public accountability and combating corruption.
In late 2023 and early 2024, the government announced its intention to table a federal FOI Bill. However, the process was immediately met with criticism from the very organisations that had long campaigned for it. The Center to Combat Corruption and Cronyism (C4 Center), a prominent anti-corruption NGO, expressed grave concerns over the lack of meaningful engagement. In a statement, C4 Center and other civil society organisations (CSOs) highlighted that they had not been given the opportunity to view the draft Bill before it was finalised for Cabinet approval (C4 Center, 2024a). They argued that a Bill of such constitutional importance, which directly impacts citizens' right to information, should be developed through an inclusive and transparent process.
The CSOs' criticism focused on the fact that despite their long-standing expertise and advocacy on this specific issue, they were being excluded from the drafting stage. They warned that this secrecy created a risk that the resulting Bill would be weak and riddled with excessive exceptions that would ultimately undermine the principle of transparency. For instance, they feared the Bill might grant ministers absolute discretion to classify documents or exempt certain public bodies, thereby defeating the entire purpose of the legislation (Yapp, 2024). In February 2024, after a meeting with the Legal Affairs Division of the Prime Minister’s Department, CSOs labelled the draft FOI bill as "severely weak" and a "step backward," primarily due to the minimal consultation and the failure to incorporate key principles they had been advocating for (C4 Center, 2024a). This demonstrates a clear disconnect between the government's process and the expectations of key stakeholders, reflecting a centralised approach where policy is decided internally and presented as a near-finished product, leaving little room for substantive public input.
Real-World Context: The Pursuit of a Public Procurement Act
The issue of public procurement reform offers another example of how the legislative drafting process can be criticised for a lack of transparency and urgency, driven by executive priorities. Public procurement, the process by which the government purchases goods and services, is a major area of public expenditure and is highly vulnerable to corruption and wastage. For this reason, CSOs and international bodies have long called for Malaysia to enact a specific, comprehensive Government Procurement Act to ensure transparency, accountability, and value for money (C4 Center, 2023).
While the government did pass the Public Finance and Fiscal Responsibility Act 2023 (PFFRA), which contains some provisions related to procurement transparency, it fell short of the comprehensive, standalone Procurement Act that had been promised. C4 Center acknowledged the PFFRA as a positive step but criticised it for not going far enough (C4 Center, 2024b). The organisation argued that crucial elements of a robust procurement framework, such as detailed procedures for open tendering, a clear appeals process for aggrieved bidders, and whistleblower protection, were absent.
The criticism here relates to the executive's control over the legislative agenda. By opting for limited provisions within a broader finance act instead of a dedicated Procurement Act, the executive was seen as taking an incremental and less-than-thorough approach to a critical area of governance reform. C4 Center has submitted detailed memorandums to the Ministry of Finance outlining the essential principles for a strong Procurement Act, based on international best practices. However, the development of this promised standalone Bill has been slow, and the drafting process remains behind closed doors. CSOs have voiced frustration that their detailed, evidence-based proposals are not being actively and transparently incorporated into a draft Bill for public consultation (C4 Center, 2023). This situation again highlights the practical reality where the pace, scope, and content of legislation are dictated by the executive, with stakeholder input being a secondary consideration rather than a guiding principle of the drafting process.
Conclusion
In conclusion, the pre-parliamentary stage of law-making in Malaysia presents a study in contrasts. The constitutional and administrative theory provides for a deliberative and consultative process where policies are carefully developed with stakeholder input and then rigorously drafted by the Attorney General's Chambers. This ideal process is designed to ensure that laws are effective, legitimate, and command broad public support. However, the practical reality is often shaped by a powerful executive that tends to centralise policy-making and maintain a high degree of secrecy around the drafting of Bills.
The contemporary cases of the federal Freedom of Information Bill and the long-awaited Public Procurement Act serve as clear evidence of this dichotomy. In both instances, civil society organisations with deep expertise have criticised the government for a lack of meaningful consultation and transparency, warning that this closed-door process is likely to result in weak or flawed legislation. While the formal structures for good law-making exist, their effectiveness is frequently undermined by a political culture of executive dominance. This gap between the theoretical standard and the practical reality remains a significant challenge for Malaysia's democratic development, as it limits public participation and hinders the creation of robust, accountable, and truly representative laws.
References
Attorney General's Chambers. (2021) Drafting Division. Available at: [https://www.agc.gov.my/agcportal/index.php?r=portal/division&id=10](https://www.agc.gov.my/agcportal/index.php?r=portal/division&id=10)
C4 Center. (2023) C4 Center’s Memorandum on the Proposed Government Procurement Bill to the Ministry of Finance. [online] C4 Center. Available at: [https://c4center.org/c4-centers-memorandum-proposed-government-procurement-bill-ministry-finance](https://c4center.org/c4-centers-memorandum-proposed-government-procurement-bill-ministry-finance)
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