By
Datuk Kuthubul Zaman
I
must admit that there are a lot more human rights issues which we need to
address. I would like to take this opportunity to highlight the fundamental
right of access to justice. Mauro Cappellatti, an Italian jurist said
“The right of effective access to justice has emerged
with the new social rights. Indeed it is of paramount importance... effective
access to justice can be seen as the most basic requirement, the most basic
human right, of a system which purports to guarantee legal rights”
Are
Malaysians and those residing in this country guaranteed that basic human
right? If one were to go on a random day to a Criminal Magistrates Court, it is
disheartening to see that a large number of accused are not legally
represented, mostly because they do not have the means to engage a lawyer.
The
Malaysian Bar Council in 1983 passed a resolution to set up a Legal Aid Scheme
whereby every lawyer is required to contribute RM 100 to the scheme every year.
To run the scheme, every lawyer is encouraged to take up at least one legal aid
case per year. Chambering pupils must be at the Legal Aid Centre at least for 2
weeks to assist in running the Centre. This Scheme is the first in the world
and no other Bars have such a scheme. The Government of Malaysia also had set up
the Biro Bantuan Guaman to assist those who cannot afford a lawyer in areas of
divorce and limited civil cases.
However,
these steps are insufficient. Despite these legal aid schemes, about 80% of
accused persons are unrepresented in court. The Bar Council then mooted the
idea of the Government setting up the Yayasan
Bantuan Guaman Kebangsaan (YBGK). After much persuasion, the Government set
up the YBGK on 25/1/2011. The YBGK scheme has been running smoothly but of
late, there has been considerable delay in payments to lawyers doing YBGK work.
This unfortunately resulted in some lawyers declining YBGK work. Thankfully,
the new President of the Bar, George Varughese has identified the source of the
delay being administrative delays in the checking of claims.
However,
PROHAM would urge the Board of the YBGK to resolve these issues immediately to
enable every accused person to have legal representation in Court. PROHAM would
also urge the government to increase the budget allocation so that the work of
YBGK will not only be to provide legal representation to the accused person in
a Criminal case but to include those who need legal representation in civil
cases.
Additionally,
access to justice is not just limited to access to lawyers and courts. It means
access to various tribunals, advice agencies and the police law. In cases of
death in police custody, the family of the victims must also have access to
justice. The number of deaths in custody is alarming. The Deputy Prime Minister
revealed in Parliament recently that there are 1654 deaths in custody cases
since 2010 until February 2017. Even one death in custody is one too many.
The
Royal Commission to Enhance the Operation and Management of the Royal Malaysian
Police 2005 in its report recommended the setting up of the Independent Police Complaints and
Misconduct Commission (IPCMC). If such a body has been set up, the
victims of death in Police Custody can lodge a complaint to IPCMC to enable the
independent oversight body to investigate. Currently, it is the police who
investigate such issues. Clearly this is not acceptable.
Once
again, PROHAM urges the government to set up the IPCMC immediately. On this
issue, PROHAM will consider organising a roundtable discussion on access to
justice in the near future.
-------------------
Delivered
by Datuk Kuthubul Zaman, PROHAM Chairman (2014 -2017) who was re-elected for a
second term on March 23, 2017 at the PROHAM AGM for another term from 2017 – 2020.
March 24, 2017
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