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ACCESS TO JUSTICE- A FUNDAMENTAL HUMAN RIGHT
THE RT HON TAN SRI ARIFIN ZAKARIA
CHIEF JUDGE OF MALAYA
It is an honour for me to be invited to address you on this important topic
- access to justice in the context of human rights.
1. HUMAN RIGHTS
[ 1 ] I would begin by stating briefly what I understand by human rights.
To me, human rights are the rights that every one of us as human
being is endowed with from the day we were born into this world of
ours. These rights cannot be taken away, nor can they be denied
based on colour, religion, age or other personal factors. Central to
the concept of human rights is the protection of human dignity. To
quote Kofi A. Annan1, the former Secretary General of the United
Nation “Human rights are the foundation of human existence and
co-existence; that human rights are universal, indivisible and
interdependent; and that human rights lie at the heart of all that the
United Nations aspires to achieve in peace and development.
Human rights are what made us human. They are the principles by
which we create the sacred home for human dignity.”
Human
rights are now universally recognised under the various United
1
Excerpt from a message of 5 December 1997, addressed by the former Secretary-General of the United
Nation Kofi A-Annan on the beginning of the 50th Anniversary year of the Universal Declaration of Human
Rights.
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Nation agreements, conventions and covenants commencing with
the Universal Declaration of Human Rights 1948(UDHR) and the
European Convention of Human Rights(ECHR).2 The UDHR and
the ECHR were the global response to the oppression and tyranny
experienced during the Second World War where every
conceivable rights of person or individual was violated.
[ 2 ] These agreements, covenants and conventions give recognition to
a list of individual rights as well as the general social and economic
rights. They have largely been incorporated into the constitutions
of democratic countries as fundamental liberties or Bill of Rights.3
In my jurisdiction, this falls under Part II of the Constitution4 which
comprises of Articles 5 to 13; certain fundamental liberties such as
personal liberty, freedom of religion, prohibition of slavery and
forced labour, equality before the law and entitlement to equal
protection of the law etc are guaranteed. Similar provisions are
found in other Commonwealth countries with written constitution.
2
Amongst others - International Covenant on Economic, Social and Cultural Right 1966 and International
Covenant on Civil and Political Rights 1966. At the regional level - the European Convention of Human Rights
1950, the American Conventions on Human Rights 1969, the African Charter on Human and People’s Rights
1981 and the Arab Convention on Human Rights 1994.
3
In Malaysia – Fundamental liberties, Chapter II of the Federal Constitution.
In South Africa – Bill of Rights, Chapter II of the Constitution of the Republic of South Africa 1996.
In the United State - Bill of Rights
In Canada – 1982 Canadian Charter of Rights
In New Zealand – 1991 New Zealand Bill of Rights.
In the United Kingdom – where there is no Bill of Rights, the rights are contained in the Human Rights Act
1998. Its aim is to give further effect in UK law to the rights contained in the European Convention on Human
Rights. The Act makes available in UK courts a remedy for breach of a Convention on Human Rights, without
the need to go to the European Court of Human Rights in Strasbourg.
4
Section 2 of the Human Rights Commission of Malaysia Act 1999.
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The Malaysian Constitution, however, does not expressly provide
for any substantive rights in regards to the enforcement of rights
guaranteed by Part II or make any reference to any written law,
unlike the Indian Constitution wherein Article 32 (Right to
Constitutional Remedies) provides for enforcement of all the
fundamental rights. And Article 226 of the Indian Constitution
empowers the High Court to issue appropriate writs for the
enforcement of these fundamental rights. Similarly section 34 of
the Constitution of Republic of South Africa expressly states that:
“Access to courts.
34. Everyone has the right to have any dispute that can
be resolved by the application of law decided in a fair
public hearing before a court or, where appropriate,
another independent and impartial tribunal or forum.”
There is no similar provision in the Malaysian Constitution.
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ACCESS TO JUSTICE - A FUNDAMENTAL HUMAN
RIGHT?
[3]
As a matter of principle, where there is a right there must exist a
right of access to court or tribunal, so that any person who feels
that his rights or liberty has been infringed or violated by any organ
of the state or by any person whomsoever may bring the matter to
court or tribunal for adjudication. If there is no such recourse open
to the aggrieved person, then the right is devoid of any meaning or
effect. It is merely illusory. Therefore, by necessary implication
access to justice must form part of the human rights. As noted by
Cappellatti5:
“Effective access to justice can thus be seen as the most
basic requirement – the most basic ‘human right’ – of a
system which purports to guarantee legal rights”.6
[ 4 ] This found experession in Article 8 of the UDHR where it declares
that, “Everyone living in a country has the right to seek help from a
court”. Similarly, the ECHR establishes what is called the
European Court of Human Rights which provides legal recourse of
5
6
Access to Justice, Vol. 1. Book 1 at 419.
M.Cappelletti & Z Rabels (1976) 669 at 672
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last resort for individuals who feel that their human rights have
been violated by a contracting party to the convention.7
[ 5 ] As I have said earlier, Part II of the Malaysian Constitution
guarantees the rights and freedom which are vested in every
citizen. However, access to justice as such is not expressly
provided as a guaranteed or protected right under the Constitution.
The substantive rights for the enforcement of fundamental liberties
or rights guaranteed by the Constitution are found in a number of
Acts and Rules of Court such as Section 25 of the Court of
Judicature Act 1964. This is contained in item 1 of the Schedule to
the Act.8 Other written laws include the Specific Relief Act 1950,
the Criminal Procedure Code and the Rules of the High Court
1980. The Rules of the High Court 1980 which apply to the
procedure respecting the power of the High Court to issue
directions, orders or writs for the enforcement of the rights
conferred by Part II of the Constitution are dealt with by Order 53
(Rules 1 to 7), which regulates applications for Judicial Review.
7
In Africa – African Court on Human and Peoples’ Rights.
In South Africa – Constitutional Court of South Africa.
In United States – Inter-American Court of Human Rights.
8
Item 1. Prerogative writs
Power to issue to any person or authority directions, orders or writs, including writs of the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari, or any others, for the enforcement of the rights
conferred by Part II of the Constitution, or any of them, or for any purpose.
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Order 54 (Rules 1 to 9) relates to application for writ of Habeas
Corpus.9
[ 6 ] It is contended in one case10 that access to justice may be
grounded on Article 8 of the Constitution which embodies the
concept of the English doctrine of rule of law and the equal
protection clause of the 14th Amendments to the American Federal
Constitution, which enjoins that no State shall deny “to any person
within its jurisdiction the equal protection of the law”.
[ 7 ] Under the principle of the Rule of Law adequate protection of the
law must be given to all persons and to give meaning to it, there
must exist an unimpeded right of access to justice. In the words of
Lord Bingham “It would seem to be an obvious implication of the
principle that everyone is bound by and entitled to the protection of
law that people should be able, in the last resort, to go to court to
have their civil rights and claims determined. An unenforceable
right or claim is a thing of little value to anyone.”
11
(Emphasis
Added)
9
Since Habeas Corpus involves the liberty of subject, the Chief Justice has issued a circular , directing that all
such applications, be set down for hearing within one week from the date of filing. See Malaysian Chief Justice
Circular No 1/2010.
10
See the case of Danaharta Urus Sdn Bhd v. Kekatong Sdn Bhd [2004] 2 MLJ 257
11
Tom Bingham, The Rule of Law, at page 85.
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[ 8 ] On similar note, Khanna, J stated in A.D.M. Jabalpur v. S.
Shukla.12
“Rule of law is the antithesis of arbitrariness... Rule of law is
now
the
accepted
norm
of
all
civilised
societies...
Everywhere it is identified with the liberty of the individual. It
seeks to maintain a balance between the opposing notions of
individual liberty and public order. In every state the problem
arises of reconciling human rights with the requirements of
public interest. Such harmonizing can hold the balance
between citizen and the state and compel governments to
conform to the law”.
And as observed by Lord Diplock in Ong Ah Chuan v. Public
Prosecutor13 ( a case originating from Singapore) : “In a
constitution founded on the Westminster model and particularly in
that part of it that purports to assure to all individual citizens the
continued enjoyment of fundamental liberties or rights, references
to “law” in such contexts as “in accordance with law”, “equality
before the law”, “protection of the law” and the like, in their
Lordships’ view, refer to a system of law which incorporates those
fundamental rules of natural justice that had formed part and
parcel of the common law of England that was in operation in
12
13
AIR 1976 SC 1207, at 1254, 1263.
[1981] 1 MLJ 64
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Singapore at the commencement of the Constitution. It would have
been taken for granted by the makers of the Constitution that the
“law” to which citizens could have recourse for the protection of
fundamental liberties assured to them by the Constitution would be
a system of law that did not flout those fundamental rules. If it were
otherwise it would be misuse of language to speak of law as
something which affords “protection” for the individual in the
enjoyment of his fundamental liberties, and the purported
entrenchment (by Article 5) of Articles 9(1) and 12(1) would be little
better than a mockery.”
Simply put, under the concept of the rule of law, state actions are
subject to judicial review; they are therefore accountable to the
courts for the legality of their actions. Hence, it may be argued that
right of access to justice is an inviolable right of every Malaysian
as conferred by Article 8.14
14
The Rise and Rise of Administrative Finality, by Jayanthi Naidu [2004], The God-Provision, by Nik Nazmi Nik
Ahmad, Fahri Azzat Amer Hamzah and Edmund Bon [2005], Access to Justice, by Mohideen Abdul Kader [2005]
2 MLJ and The Right of Access to Justice : Judicial Discourse in Singapore and Malaysia, by Gary K Y Chan [2007]
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DELAY IN JUSTICE SYSTEM – is a factor hindering
access to justice
[9]
Ensuring citizens’ access to justice is a crucial fundamental right
and an important state obligation. Providing justice – substantive
and procedural – fairly, impartially, equally and of course
expeditiously and economically, under an organised system of
administration of justice, is a major responsibility of the state15.
[10] Having accepted that access to justice is a fundamental right and
important state obligation, however, what has often been
overlooked is that the recourse to justice should be expeditious
and inexpensive, if at all is to be effective. As the maxim goes,
justice delayed is justice denied. It should be born in mind that
access to justice is not merely having the right to institute a claim
in court but it further entails a reliable time frame for disposal of
claims and the process should not be expensive as to be out of
reach of the ordinary citizen.
[11] We should always remember that delay in the justice delivery
system could erode public trust, faith and confidence in the
judiciary. K.S. Jacob in the local paper “The Hindu” of 7th February
2011, writing on delay in the Indian Judiciary lamented:
15
Excerpt from an article by Hon. Mr. Justice Nasir Aslam Zahid , on “Woman’s Access to Judicial Redress”, at
Eight Judicial Colloquium on the Domestic Application of International Human Rights Norms.
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“Many hundreds of thousands of people are currently in jail
in India for minor and bail-able offences. Their lack of access
to legal advice and the slow and cumbersome judicial
systems keep them confined for long periods and deprive
them of their human rights, when bail is valid alternative.”
[12] Similarly in Malaysia, until of late it is not uncommon for cases to
be languishing in court for several years. It can be as long as 10 to
15 years. We have tracked cases that had been adjourned for
more than 50 times. Both the courts and counsel are equally to
blame for the delay.
[13] The Chairman of Malaysian Human Rights Commission in his
address in conjunction with the Malaysian Human Right Day
Conference 2009 stated that the delay in disposal of court cases
as amongst the complaints received by the Commission.
[14] The Malaysian judiciary shares the belief that “A speedy trial is
certainly an unwritten right of every person accused of an offence.”
per Hashim Yeop A Sani FCJ in the case of Ooi Ah Phua v. Officer
in Charge Criminal Investigation, Kedah/Perlis, in the context of
Article 5(3) of the Constitution
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[15] We have continuously explored new measures in overcoming
backlog of cases and introduced new ways and means to expedite
the disposal of cases. In this connection, I would like to share
some of our experience in improving the court’s delivery system in
Malaysia. These reforms, I may say, acted as a wake up call to
lawyers and judges alike.
[16] These strategies have resulted in a drastic drop of pending cases
and in speeding up the trial process. The measures taken may be
summarised as follows:
(a)
SPOT CHECKS AND SUPERVISIONS
As a result of surprise checks to the courts, many problems
were found. For instance, the unsatisfactory condition of the
filing rooms, the registries and the court rooms. These were
discovered first hand, when personal visits were made by
Chief Justice and the senior members of the judiciary to the
various trial centres in the country.
(b)
STOCKTAKING AND ARRANGEMENT OF FILES
As in any business organization, stocktaking is an important
exercise.
Similarly
with
the
courts.
Directions
were
accordingly given to all the courts to count all the files at all
levels. It was discovered that thousands of files were in fact
closed but still remaining on the courts’ docket. Similarly,
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many files remained dormant in the filing room without any
actions being taken. The stocktaking exercise had never
been done in the past and as a result inaccurate returns
were submitted to the headquarters. After the stocktaking
exercise, files are now neatly arranged and organised so that
they can be systematically managed and retrieved. This
improves efficiency and saves man power.
(c)
SUPERVISION
To ensure that whatever directions are complied with, close
monitoring and supervision are necessary. Senior members
of the judiciary are appointed as managing judges to assist
the Chief Justice in the supervision. They periodically report
to me and the Chief Justice on the status of courts under
their supervision. I am happy to say that we now know the
status of all cases in all courts throughout the country. We
have introduced what we called the “performance chart” and
the “tracking chart” to keep track of cases in courts
throughout the country.
(d)
INCREASE IN NUMBER OF JUDGES
For cases to move speedily, it is essential to increase the
number of judges. At one time, there were only 90 judges
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nationwide.16 This has since been increased. Presently, we
have a total of 135 judges right from the Chief Justice down
to the Judicial Commissioners. [This does not include the
subordinate courts judges and magistrates.] These figures
vary from time to time as some judges retire and new ones
are appointed. Many of these new judicial commissioners are
appointed for a fixed term of office to overcome case
backlog. (There has been a 40 % increase in number of
judges over a period of 2 years.)
(e)
COURT TRACKING SYSTEM
Under this system, judges are assigned to particular track.
Basically, cases are categorized into two tracks namely:
(a) ‘A’ track – trials by affidavits.
(b) ‘T’ track – trial with witnesses.
This speeded up the disposal of cases as judges assigned to
do trials with witnesses do not have to spend part of their day
hearing interlocutory matters. Interlocutory matters are
assigned to the ‘A’ track judges.
(f)
SPECIALISED COURTS
The new specialised courts allow certain cases, e.g.
Intellectual Property (IP) cases, Islamic banking cases,
16
The Federal Constitution provides for a fix number of High Court judges in Malaysia at 73, 32 for the Court of
Appeal and 11 for the Federal Court.
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commercial cases and family cases, to be heard before a
judge knowledgeable and more experienced in those areas
of the law. With these specialised courts, cases are disposed
off more efficiently and speedily. Judgments are delivered on
schedule without compromising on quality because the
presiding judges understand the issues better as it is within
their specialised knowledge.
Likewise, a Mu’amalat (Islamic Banking) court judge needs
to be well-versed in the areas of Islamic Banking and
Finance. Before the specialisation of the Mu’amalat court,
one court in the Commercial Division was dedicated to hear
Mu’amalat
matters
and
non
Muamalat
matters.
The
specialised Mu’amalat court commenced in February 2009
and the rate of disposal of cases doubled after that date (See
Tables 1 and 2 below). We expect by April 2011, Mu’amalat
cases will not take longer than six months from the date of
filing to disposal.
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Table 1
Table 2
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The same can be said about the Intellectual Property (IP)
court. An Intellectual Property judge would need to be an
expert on IP matters. The judge’s expertise would contribute
to the quick disposal of cases. The rate of disposal of IP
cases have substantially increased from last year and the
cases are now disposed off in matters of months from date of
filing. (See Tables 3 and 4 below)
Table 3
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Table 4
This shows that specialisation promotes efficiency and
enhances the judges’ expertise leading to speedier disposal
of cases. Also, judgments would be more consistent and
uniform; this is important because we want some form of
legal certainty in commerce.
(g)
SETTING UP OF NEW COMMERCIAL COURTS
In September 2009, the New Commercial Courts in Kuala
Lumpur (NCC) was launched. It handles commercial cases
filed from 1st September 2009.
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Cases in NCC are actively managed and strict timeline is the
rule of the day. Hence, cases noticeably move faster.
The statistics show that a large number of cases are dealt
with within three to four months of their filing dates. Two
judges are assigned to handle all the cases registered over a
period of four months. These judges were selected from
experienced legal practitioners. (See Table 5 below)
Table 5
NEW COMMERCIAL COURT
Monthly
Registration
Sept
289
Oct
389
Nov
328
Dec
363
Jan
289
Feb
299
Mac
426
Apr
370
May
367
Jun
361
July
345
Aug
352
Sept
317
Oct
345
Nov
357
Dec
369
DISPOSAL
BALANCE
Sept
Oct
Nov
Dec
Jan
Feb
Mac
Apr
May
Jun
July
Aug
Sep
t
Oct
Nov
Dec
7
30
78
60
26
12
37
13
11
11
0
0
1
1
0
1
1
17
38
75
128
32
22
29
16
17
10
2
2
0
0
0
1
22
29
40
134
29
21
19
22
7
2
1
0
2
0
0
21
34
42
121
55
33
17
21
8
6
2
2
0
1
4
30
87
41
22
29
14
21
10
14
7
1
9
12
35
92
21
51
18
8
25
11
4
8
14
14
57
82
72
40
25
49
29
17
12
29
14
20
95
71
45
40
33
13
7
32
19
40
76
64
44
40
27
19
40
20
45
61
87
40
22
32
54
18
62
66
80
29
23
67
13
33
96
94
32
85
29
61
100
41
86
30
61
91
163
30
53
274
9
360
7
47
138
185
232
262
345
322
243
374
320
311
393
437
408
329
Monthly Disposals of cases at New Commercial Courts from September 2009 until December 2010
From the table we can see that for example from a total of 289 cases filed in September 2009,
there remained a balance of only 1 case not disposed off.
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From the number of cases filed in the first three (3) months
(i.e. September 2009 to November 2009) we found that only
about 1.78 percent of the commercial cases proceed to full
trial with witnesses, and the majority of cases are disposed
off by way of judgment in default. (32.65 percent of the total
number of cases). (See Table 6 below)
Table 6
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Appeals to the Court of Appeal from the NCC are also given
priority and heard by a specialised panel.
So far, these appeals are heard within three months of their
filing. With faster disposal at the High Court, pending appeals
at the Court of Appeal have ballooned up substantially but
we are looking into this problem. Although there may be
delay at the Court of Appeal, parties should be happy that
their cases are at least heard at first instance. At the Court of
Appeal the number of appeals pending is almost 11,000.
By April this year, the Original Commercial Courts (OCC) will
be closed. Thereafter, all cases under the NCC will be
resolved within nine (9) months from the filing date. The
same target is set for the other major trial centres in the
country.
(h)
COMPUTERISATION
In recent years, technology has been widely used in courts to
help in disposal of cases. The IT system of the courts should
facilitate public access to court information. Currently, in
most jurisdictions, the judiciary has set up websites,
containing information accessible to public such as the
jurisdiction of the courts, cause lists and grounds of
judgments. I can foresee that more features such as
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electronic payment of summonses, electronic filing (E-filing),
electronic file search and other interactive functions will be
added to the E-Court system.
In Malaysia, the E-Court as we called it, comprises of 3 main
components:
(i) Case Management System (CMS)
Case Management System (CMS) is the main component of
the E-Court System. The objective of case management is to
allow for computerised file tracking, scheduling of trials,
retrieval of statistic and management reports and monitoring.
With CMS, cases are managed electronically from the date
of filing to date of final determination.
(ii) Queue Management Systems
Queue Management System (QMS) , as the name suggests,
is a system to manage cases which are scheduled for
hearing for the day. Previously, lawyers and members of the
public have to wait for their cases to be called by the Court
staff. For lawyers having more than one case scheduled for
the day, much time is wasted waiting for their case to be
called. The waiting may take hours.
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The main objective of QMS is to provide better quality
service to lawyers and members of the public. Using QMS,
lawyers will record their attendance using the kiosk provided
in the court premise. The Kiosk will confirm if the case is
listed, whether their opponent is present and has registered
their attendance and the room where their case will be
heard. Lawyers also have the option to register for SMS
alert, where they will be informed via SMS when their case is
ready to be called.
With this system, lawyers and parties involved in a case
may, in the mean time attend to other matter, such as
mention of cases in other courts.
(iii) Court Recording and Transcription (CRT)
Basically, CRT involves the recording of Court proceeding.
The proceeding is recorded live on the audio-visual system.
At the end of the day the recording can be copied on to a
CD-ROM and made available to the parties for a nominal
fee. The transcription of note of proceeding can be done on
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real time or post hearing. This system offers the following
benefits:
(i) Judges and lawyers are no longer distracted with
the ongoing transcription and are able to concentrate
on the hearing;
(ii) if need be, the note of proceedings can be prepared
instantly or on the same day;
(iii) the Chief Justice and Chief Judge can check on the
court proceedings in real time from their respective
Chambers;
(iv) Last but not least, trial time is considerably
shortened because judges are relieved from the
tedious task of recording the evidence in writing.
To facilitate the usage of CRT in criminal justice system, our
Criminal Procedure Code was amended with effect from 1st
May 2009 to allow recording of evidence in criminal trial via
mechanical means. Prior to that the notes of proceedings in
criminal matter were required by law to be taken down in
writing by the trial judge. For civil cases, there is no such
hindrance.
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Our record shows that the introduction of CRT has
considerably shortened the time taken for full hearing; hence
it enables cases to be disposed off expeditiously.
Soon all courts in Malaysia will be equipped with these
computerised systems.
(i)
POSTPONEMENT
Postponement or adjournment is the culprit for delay. The
Malaysian courts are now strict in granting postponement.
For every postponement granted, witnesses who have
attended court have wasted their time and money. In my
estimation, millions of ringgits (Ringgit Malaysia) were
wasted on travelling expenses as well as for loss of income
for the day.
(j)
JUDICIAL TRAININGS
Seminars and workshops to train judges are held at
weekends. They are conducted on weekends or public
holidays to avoid wastage of judicial time. Locals as well as
international speakers are invited to speak and discuss on
several topics. We found that these trainings have improved
the knowledge and therefore the efficiency of judges.
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ALTERNATIVE DISPUTE RESOLUTION – MEDIATION
Mediation was introduced in April 2010 after a successful
workshop
conducted by Senior Judge, Wallace of the USA.
Mediations are encouraged in appropriate cases. More
cases are settled through mediation now.
(l)
EVIDENCE/PROCEDURES SIMPLIFICATION
The Criminal Procedure Code has been amended, but yet to
be brought into force, to rationalise criminal procedure.
While the Civil Procedure Rules are in the course of being
drafted to provide for a common rule of courts for both the
High Courts and Subordinates Courts. And more importantly
to simplify the civil procedures.
(m)
PLEA BARGAIN
The Criminal Procedure Code was amended in 2010 to
provide for plea bargain in criminal cases. This amendment,
once put into force, would certainly help to expedite the
disposal of criminal cases.
4.
LEGAL AID
[17] Let me touch a little on legal aid systems in Malaysia. This is a
topic directly related to access to justice. The cost of legal service
can be prohibitive. Realizing that not everyone cannot afford to
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obtain legal service, there are alternative means for public to have
recourse to legal representation. At the moment, we have three
bodies providing legal aid service. They are:
(i)
Legal Aid Department (LAD)
The LAD is a governmental body under the Legal
Affairs Division of the Prime Minister’s Department. It
was established in September 1970. Its source of
power is found in the Legal Aid Act 1971, the Legal Aid
and Advice Regulations 1970 and the Legal Aid
(Mediation) Regulations 1970 and the Legal Aid
(Mediation) Regulations 2006. The primary objective of
its establishment is to provide legal aid and advisory
service to the deserving members of the public on legal
issues commonly associated with them.
The LAD provides free legal advice and representation
to individuals who pass their qualifying criteria. In
addition, LAD also provides subsidised legal service.
LAD has branches in all states and the Federal
Territories in Malaysia.
ACCESS
(ii)
TO
JUSTICE
–
A
FUNDAMENTAL
HUMAN
RIGHT
| 27
Bar Council Legal Aid Centre
Bar Council Legal Aid Centre (BCLAC) was founded by
the Malaysian Bar Council with the objective of
providing
citizen
equal
opportunity
enforcements of their fundamental right.
for
the
It provides
free legal advice and representation and it has
branches in every state in Malaysia.
The BCLAC is actively involved in pro-bono work in the
community, and conducts many programmes in
cooperation with other organisations.17 It is funded
through the contribution of members of the Bar and
cases are taken on a voluntary basis by dedicated
lawyers.
(iii)
National Legal Aid Foundation
The National Legal Aid Foundation (NLAF) was
proposed by the Bar Council. At the moment, about 80
per cent of the accused persons in criminal cases are
without legal representation because they could not
afford to pay the lawyers’ fees.
People from
households with an annual income of less than
17
Amongst others include All Women Society (AWAM), Women’s Aid Organization (WAO), Tenaganita’s
Migrant Workers Desk, Pink Triangle Foundation and United Nation High Commissioner for Refugees (UNHCR).
ACCESS
TO
JUSTICE
–
A
FUNDAMENTAL
HUMAN
RIGHT
| 28
RM25,000 can seek assistance from this National
Legal Aid Foundation. Its aim is to ensure that all
accused persons could get a fair hearing in courts in
line with Clause (3) of the Article 5 of the Federal
Constitution. The clause states that an accused person
must be allowed to consult and be defended by a legal
practitioner of his choice. Once established, it will be
an independent body that administer funds allocated
for legal aid by the Government and the Bar Council.
Its objectives are, amongst others, to fund the provision
of legal aid, enhance services for lawyers to represent
those needing legal representation, determine the
guidelines for the administration of the national legal
aid scheme, and initiate and carry out educational
programmes
designed
to promote understanding
among members of the public of their rights and duties
under the laws of Malaysia.
NLAF will focus on obtaining representation for
persons caught in the criminal justice system- from the
point of arrest to courts hearing. Lawyers who sign up
to handle NLAF cases will be paid from the fund.
ACCESS
TO
JUSTICE
–
A
FUNDAMENTAL
HUMAN
RIGHT
| 29
CONCLUSION
[18] In conclusion I would quote the words of Peter Jamadar in the
CJEI Report on “Access to Justice, Pathway to Peace”, WINTER
2010 at pg 9, which is highly pertinent to the issue at hand, he
wrote:
“Access to Justice and the due delivery of justice are two
fundamental pillars upon which the edifice of the
Administration of Justice in any state must be constructed,
if it is to serve the ends of the growth and development of
peaceful, productive and sustainable civilizations.”
Lastly I must say that access to justice should not only be
recognised as a distinct fundamental right, it ought to be enacted
into the Constitution of every civilised nation as a protected right.
In short, it is a basic right.
For a right without remedy is
meaningless.
Thank You
9 February 2011,
The 17th Commonwealth Law Conference, Hyderabad, India
TAN SRI ARIFIN ZAKARIA
CHIEF JUDGE OF MALAYA