Decentralisation is necessary and traditional and modern, legal and non-legal, judicial and non-legal techniques must be nurtured.
THE administration of justice is the firmest pillar of government. Access to justice is, or should be, a fundamental right in a democratic society.
A mature legal system should contain a wealth of institutions, laws, principles and procedures to protect rights and provide remedies when entitlements are infringed.
Powers should be subject to limits. There should be a fair balance between the inevitable conflict of interests in society.
Unfortunately, a host of historical, economic, geographical, legal and educational factors stand in the way of access to the institutions charged with the responsibility of righting wrongs. Structural injustices: Though the law claims to be an embodiment of justice, the reality is many laws reflect the interests of those in power.
According to Plato, justice is nothing other than the interest of the stronger! The adversarial system of justice is unintentionally hostile to the rights of those unrepresented by a lawyer. The National Land Code ignores the rights of the Orang Asli, the natives and those we dub as squatters even though many of them have for generations mixed their sweat and toil with the soil.
The complexities and technicalities of the law, the time limits and special procedures necessitate reliance on skilled lawyers to negotiate the nooks and crannies of the law.
With legal aid in its infancy and legal literacy extremely low, there are problems of access to justice for the indigent and those not schooled in the law.
Poverty and under-development adversely affect access to justice. The beauty of the Constitution and the laws has no nexus with the socio-economic reality of society.
This dichotomy between formal justice and functional justice was
the theme of a recent National Colloquium in Sarawak organised by the Judiciary and the United Nations Development Programme (UNDP) Malaysia.
Our Chief Justice Tan Sri Tengku Maimun Tuan Mat spoke passionately about the unsatisfactory ground realities and her desire for strengthening ongoing reforms.
Mobile courts: A large segment of the population in rural Malaysia, especially in Sabah and Sarawak, lives in remote, inaccessible terrain where the amenities of modern life like roads, transport, court rooms and banks are not available. The commendable innovation of mobile courts by the former Chief Judge of Sabah and Sarawak (later our Chief Justice), Tan Sri Richard Malanjum, will be continued and strengthened.
The mobile court traverses the tough terrain in the interiors. Instead of people coming to the courts, the courts go out to the people to dispense justice.
Another way the mobile courts operate is relevant officers from other government departments travel with court staff to assist in administrative and related issues like non-registration of births and deaths. Many “legal problems” are actually administrative in nature and can be resolved outside the courts.
More courts: To improve access to justice, a new High Court would be set up in Sungai Petani and new Sessions Courts in Besut, Terengganu and Langkawi.
Paperless proceedings: Lawyers and the Attorney General’s Chambers need not make their submissions on paper and can do so electronically. Costly journeys to court rooms and photocopying in bulk need not be done. This will cut disbursement costs and improve access to justice.
e-bails: Bailors can now post bail online. They need not travel long distances to access their bank accounts. It will now be easier to meet time deadlines. In states like Johor and Kedah where the courts operate on Sundays but banks do not, this platform can alleviate the bailor’s dilemma.
Self-representing litigators: A large number of poor litigants are unrepresented by lawyers due to the high cost of court proceedings. Court staff are now being appointed and manuals are being prepared to provide basic information to unrepresented litigators.
Holistic approach: Commendable though these reforms are, the magnitude of the problem requires a holistic and innovative approach. We must recognise that access to justice is not synonymous with access to the courts, judges and
lawyers – central though the judicial and legal professions are in providing remedies for wrongs.
There are many alternative, non-legal and non-judicial techniques that can complement our judicial and legal institutions.
In Asian and African societies, village elders and authority figures often supply expeditious, informal and inexpensive remedies.
In India the panchayat raj; in Malaya the D.O., A.D.O. and the penghulu often delivered justice with a strong flavour of conciliation or mediation.
In many areas like labour, housing and consumer complaints, specialised tribunals can resolve grievances without involvement of lawyers.
In other fields like local authority matters, health and hospital-related complaints, specialised ombudsmen can resolve disputes.
The media is the fourth estate and can play a very significant role to provide an informal redressal mechanism. A full newspaper page could be devoted to public complaints and the government departments’ reply.
Law faculties, law teachers and senior law students can supplement the work of lawyers to provide free legal aid and advice. Many universities including Universiti Malaya are pursuing this path.
Service centres by MPs and assemblymen can provide yeomen’s service to hapless citizens.
Parliament and the state assemblies can set up committees on public complaints.
The realisation should dawn that there are multiple ways of approaching the mainsprings of justice.
Given the magnitude of the task, decentralisation is necessary and traditional and modern, legal and non-legal, judicial and non-legal techniques must be nurtured.
This article was first appeared in The Star on 30 January 2020
