Fundamental right of access to justice

Kuthubul-Zaman2By 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 RM100 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 urges the Board of the YBGK to resolve these issues immediately to enable every accused person to have legal representation in Court. PROHAM also urges 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 were 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 had been set up, the victims of death in police custody could 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.

Kuthubul Zaman is Society for the Promotion of Human Rights (PROHAM) Chairman.

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