Click here for Special Report I, here for Special Report II, here for Report IV, here for Report V, here for Report VI and here for the Final Report.
The Opening Ceremony started at 0900, with the keynote address given by President of the Czech Republic, Vaclav Klaus. He cautioned delegates about extending rights by legislation too far to the extent of curtailing freedoms when he said that ill–thought out legislation can “complicate life and its quality”. He used consumer rights as an example. Klaus also criticised judicial activism when he said:
“Judicial activism…leads to a usurpation by judges of powers rightly belonging, in a democracy, to the political branches of government. Judicial activism, when it undermines parliamentary intent, is necessarily anti–democratic. It leads to the rule of lawyers instead of the rule of law.”
When Klaus spoke, he was probably thinking he leads a communist state as he failed to acknowledge that an independent judiciary able to check the executive is a sign of a vibrant democracy. Opponents of judicial activism tend to argue their corner from an extreme position, leaving no room to consider how judicial activism has promoted the rule of law rather than, in the application of the law by the judiciary, to merely parrot or acceding to the law’s dead letter.
In a more dynamic address to the delegates at the ceremony, the IBA President, Francis Neate, reiterated IBA’s work in the area of developing the jurisprudence of human rights and assisting rule of law initiatives. He told delegates that the rule of law is under threat even in countries where respect for it seemed well entrenched. He described how the IBA had been instrumental in filing an amicus brief in the UK’s House of Lords on the admissibility of evidence obtained by torture. He also spoke about how human rights norms in business and the corporate world is fast gaining prominence, such as in the case of jailed Russian businessman Mikhail Khodorkovsky, where issues of political interference in his trial has been highlighted by IBA’s Human Rights Institute.
Breakfast was then served after other speeches, and the delegates broke away into their chosen working sessions for the day.
Financing access to justice
In the morning, I attended the session on “Financing access to justice”. The session explored various approaches by different jurisdictions in respect of legal aid and pro bono work. The speakers took the common position that access to justice is a fundamental right enshrined in international law. The responsibility rests on the State to provide legal aid to impecunious persons seeking legal advice and representation. Any programme providing access to justice should therefore be sustainable by its countries’ economy.
They then enlightened us with how in an ideal situation, legal aid work should be carried out, and compared it with the realities of the situation — the majority of lawyers do not embrace legal aid work because it does not pay and inadequate funding by governments as legal aid is of a low priority to them.
Haji Sulaiman spoke from the floor where he highlighted the need to engage the public to gain their support for our work as lawyers. A common perception, by a layperson, is that lawyers are seen as “oppressors” or only work to benefit themselves financially. During the “Reformasi” period where scores of protestors were arrested, the Kuala Lumpur Legal Aid Centre had quickly mobilised and set up the Urgent Arrest Task Force to provide legal assistance and representation to those arrested. This went some way to improve the image of lawyers and raised the profile of legally-aided and pro bono work in the public’s eyes. Haji Sulaiman also mentioned that our “Reluctant Performers” used to perform their shows and donated their earnings to the Legal Aid Centre to support it.
Several strategies were then proposed as to how legal aid might work better. Some initial thoughts come to mind with regard to our legal aid system as set out below. These are not new, and I recall off-the-cuff that there has been some recent discussion on this already — see Shanmuga Kanesalingam on his proposals to revamp legal aid as part of Council’s 5–year plan (published on the Malaysian lawyers egroup) and his criticisms of the current legal aid structure (published on the Bar website), Su Tiang Joo on his thoughts as to the abolishment of the legal aid system (published in Infoline this year), Cecil Rajendra replying to Su’s comments (published in Infoline this year) and Hon Kai Ping commenting on Rajendra’s piece (published in Infoline this year).
1. The first push should be to lobby the government to increase its net of representation. Currently, in criminal cases, the government’s Legal Aid Bureau only represents those who plead guilty and need representation for mitigation. Alternatively, if the Bureau is short of lawyers, there should be a system whereby the government pays lawyers in the legal profession for representation.
2. A more ambitious effort would be to lobby the government to tie-up with the Bar’s Legal Aid Centres including the provision of funds for our legal aid work and legal education programmes. Our independence must be reiterated and made clear from the start. If it is not a problem with countries such as New Zealand where the government funds legal aid work, and lawyers regularly represent clients acting against the government, I do not see why we should not start inculcating these values here.
3. We should consider paying lawyers who take up legal aid cases — disbursements and a fee for professional services rendered. The fee would be a large discount of the fee which would normally be charged. Again, this asks the question — where is the money going to come from? And again, we should start inculcating the idea that legal aid funding must firstly be seen as part of the government’s policy, hence, see 1. and 2. above. There are of course other ways to raise funds and one to be considered is to use interest from lawyers-clients trust accounts to be paid to the legal aid scheme.
4. At present, the courts have an assigned counsel scheme which fixed rates of fees paid. The courts will only assign a counsel in cases where the penalty is death. We should consider lobbying the government to extend this scheme to all cases where the offence is punishable by a sentence of imprisonment. The fixed scale of fees would vary according to factors such as the seriousness of the case, the complexity and issues arising etc.
4.1 Jurisprudence by the Court of Appeal in Bahamas has effectively extended the right to legal aid for cases where the offence is punishable by a sentence of imprisonment.
4.2 In New Zealand, a pilot project called the Public Service Defender has been set up in 2 courts where legal representation is given. This system is much like our assigned counsel system.
5. In respect of legally-aided civil cases, we should consider conditional or contingency fee arrangements to encourage and attract more lawyers to take up these cases. Our profession rules on this should be looked at again, and jurisdictions around the world are liberalising their fee arrangements. A successful legally-aided client should (re)pay a certain percentage of what is recovered either in costs or damages to the lawyer handling the case.
5.1 From the outset, the client must be informed of the maximum repayment he may face and to obtain an estimate of the likely total cost.
5.2 For example, in South Africa, the lawyer who acts for the client who succeeds in the litigation is entitled to charge not more than 100% of his usual fee with the proviso that the client does not pay more than 25% of that fee.
6. We may want to look at mandatory legal aid to be imposed on all lawyers. The argument against this is that it assumes all lawyers have the expertise and skills to deal with the cases which are given to them. True, but as far as possible, there should be an informal way of allocating cases to lawyers with the expertise in the field the case requires. Further, there should be a “buy-out” clause which allows the lawyer to pay a levy to “buy-out” of the case — ie, he pays a sum so that he can pass the case back to the legal aid centre which will then allocate the case to another lawyer. This scheme must nevertheless be predicated on the basis that lawyers taking up legal aid cases are being paid.
7. The Kuala Lumpur Legal Aid Centre currently has many programmes which involve legal activism such as the Sungai Buloh Prison programme, the Kajang Women’s Prison programme, link-ups with NGOs such as WAO, SIS, AWAM, Syariah clinics etc. These do not necessarily involve legal representation in courts. I believe this is good and should continue for it exposes and educates our lawyers. Further, to have pupils and non-lawyers to deliver services not only trains them but eases the financial and time burden on the Bar and other lawyers. However, as the programmes have expanded so rapidly, we should also consider revamping the administration of the Centre in line with Council’s 5-year plan.
More thought and dialogue definitely needs to be expanded on this issue. As part of Council’s 5-year plan, I am of the view that there should be a serious re-visit by Council, in particular, the National Legal Aid Committee, of the current legal aid system with a view to improving the same.
IBA Foundation Open Forum
I attended the forum where I learnt about the work of the Foundation. It basically financially supports and approves grants for projects around the world which concern upholding of the rule of law. Some of these projects included the funding for the compilation of comparative legal materials to strengthen the capacity of lawyers in death penalty cases (“Legal Tools for Commonwealth Africa — Death Penalty Cases 2005”) and the funding of the Pacific Judicial Conference to produce the Principles of judicial administration in the South Pacific region in 2003. More information as to how to apply can be found at www.ibanet.org/aboutiba/IBA_Foundation_Inc.cfm.
The IBA President, Francis Neate, said that he felt that it was an obligation on the part of the legal profession to support the rule of law around the world, and the work which goes with it for without the rule of law, lawyers would not be here today. He explained that nowadays, the pressure on the commercial lawyers is ever increasing, and there is no time to do the work required of the obligation unless the firm supports such work. Thus, if lawyers do not have the time to contribute, he said, they should contribute by giving money. And for him, as a commercial lawyer back then, that was the only way he could “salvage” his conscience.
Advancing collective rights in international courts
In the afternoon, I attended the session which focused on advocating rights of minorities as a collective group. A minority group may be based on ethnic, religious or cultural considerations. Ozlem Ulgen gave a comprehensive picture on how the international community has attempted to protect minority rights, in particular, the indigenous.
She showed firstly, the effectiveness of the AWAS indigenous lobby in Nicaragua within the framework of the American Convention on Human Rights. The AWAS community argued against the government’s concession to a Korean company of logging rights. The community had no title to the land in question but evidence was produced to substantiate a history of prior occupation and use of the land. The community failed at the domestic courts and petitioned the Inter–American Commission of Human Rights. The Commission made its recommendations in favour of the community and further lodged a complaint with the Inter-American Court of Human Rights.
As Nicaragua was bound by the Convention, the Court had jurisdiction over the matter and decided that Nicaragua had violated the community’s right to judicial protection and for failing to provide an effective remedy in domestic law to the community in matters which concern the demarcation of their land. In addition, the Court found that the Nicaragua had failed to consult and obtain the consent of the community before proceeding with the grant of the concession.
The judgment is innovative because for probably the first time, in addition to recognising the rights of minority groups, the Court had imposed positive obligations on the state party to effectively protect the community by legislating into domestic law a mechanism of consultation and consent for the collective benefit of the community.
Ulgen then spoke about the general treaty based system under the International Covenant of Civil and Political Rights. The limitations under article 27 of the Covenant were highlighted which included, among others, the pre-requisites for a complaint to be lodged (with the Human Rights Commission) against a state party as follows:
1. The state party must have signed and further, ratified the Covenant (including the 1st Optional Protocol) in its domestic legislation.
2. The complainant must have exhausted all of its domestic remedies unless it is shown that the domestic remedies are lacking, prolonged, unfair or it is not transparent.
3. The complainant may only lodge the complaint as an individual for his own only, and he cannot represent the interests of a group.
Further, any decision of the Commission are merely findings and are not punitive or compulsory. The state party affected may ignore the findings of the Commission.
Ulgen proceeded to explain that despite the limitations, there has been much headway in the area of aboriginal rights. The important milestones were the cases of Lovelace v Canada (1981), Kittock v Sweden (1988), Lucon Lakeband and Dearguard (2000).
In April 2004, the UN Committee for Elimination of Racial Discrimination made a landmark decision when it found that domestic legislation by the New Zealand government to extinguish Maori rights to areas such as certain seabeds was in contravention of the Convention Against the Elimination of Racial Discrimination. Further, the Committee found that the government had failed to guarantee redress to the Maoris in these matters in particular, where no consultation was held.
Once again, whilst the state party is publicly reprimanded, the Committee is powerless to enforce its findings.
The Human Rights Commission of Malaysia has repeatedly recommended the ratification of the Bill of Rights, and the government has replied that it will not because the social conditions based on considerations of the 3 major ethnic groups in Malaysia do not permit. International law would only be truly useful in our courts if the same were ratified in Malaysia. As a long-term project, I believe Council, through the Human Rights Committee, should look into intensifying the lobby of Members of Parliament with regard to this issue.
Restructuring of the United Nations
At about 1520, I could not resist stepping into the room which was discussing the current hot topic since the recent “failed” UN summit — reform of the UN. The speakers were eminent and after listening to them engage the delegates, I could understand why — statesmanship. They were Ambassador Emilio Cardenas (former Permanent Representative to the UN for Argentina and former IBA President), Justice Richard Goldstone (former judge of the Constitutional Court in South Africa, former chief prosecutor of the UN International Criminal Tribunals for the former Yugoslavia and Rwanda and leader of the UN’s Oil for Food investigation), Ambassador Hans Corell (former Head, UN Office of Legal Affairs) and Michael Reisman (Myers S McDougal Professor of International Law, Yale School of Law).
A written report like this cannot transcribe how one would feel listening to the speakers, especially on such a topic where strong divergent views exist. Is there a need to reform the UN? If so, how do we go about it? Should membership Permanent Members of the Security Council be expanded? Are the Millennium Goals Declaration merely words with no substance?
When I came into the room, Goldstone was speaking and explaining how the UN must still be regarded as the core institution which will fuel respect for human rights around the world. He said that human rights advocates should be optimistic about the future of human rights with the UN, and he gave his reasons why. He traced how the internationalisation of human rights came about as a global phenomena only after the 2nd World War, and prospered under the UN’s Human Rights Commission. The concept of international humanitarian law developed with establishment of the International Criminal Court and the war crimes tribunals in respect of the former Yugoslavia and Rwanda.
The example of the former Yugoslavia is telling. During and immediately after the conflict, the Croats, Serbs and Bosnians all denied that they had perpetrated the violence and crimes against humanity. With increasing pressure on these groups by the UN and the establishment of judicial processes to investigate and prosecute the respective impugned leaders, today, there are no longer denials or “fabrications of truth”. Rather, there is a slow but steady process of reconciliation and march towards justice.
The number of international human rights treaties formulated, ratified and implemented around the world is another product of UN work. Goldstone concluded his comments by seeking support for the UN, and explained that whilst there are political and administrative difficulties with the structure of the UN, the global community must not give up hope in the UN. He said that his recent investigation and subsequent report into the Oil for Food debacle exposed the magnitude of the problem faced by the UN, and exposed the inadequacies of the UN particularly in the auditing and accounting arenas. He defended Kofi Annan’s role by saying that the problem was too large for the UN and Annan faced “an impossible task”. In essence, it was a failure to manage the programme properly as it pushed the UN staff “beyond their core competencies”. Goldstone hoped that his report would lead to the necessary changes and safeguards in the UN system to prevent a similar occurrence.
Cardenas gave us an interesting insight into the workings of the UN Security Council, and attempted to make us understand the shortcomings with regard to the handling of Rwanda. He started by dealing with the accusation that the Council was to blame but if we had understood what was going on in the informal discussions and lobbying behind the scenes, we would have seen the situation in a different light.
He commended the NGOs for being the first to highlight the acts of genocide in Rwanda and emphasised the importance of NGOs in today’s changing world where at times, more accurate information is sent by them than by his own country and other traditional channels. NGOs have changed the landscape of today’s international environment. Hence, when the atrocities in Rwanda came to his attention following reports by NGOs, he (representing Argentina), the New Zealand and the Czech Republic ambassadors were considering whether to push the issue forward with the Council. There was a threat of a veto by one of the 5 Permanent Members (he calls them the “5Ps”). The French said it was a non-starter and that it would veto. Similarly, with the Belgians. And every item on the agenda of each meeting of the Council would have been discussed beforehand informally between the 5Ps and the UN Secretary–General. Cardenas said if you are told that the 5Ps “are not ready to discuss the matter”, then its impossible to bring it to the table of the meeting.
At the Council, there are 3 types of rooms — (a) the informal room where discussions are held daily for 2-and-a-half hours including holidays, Saturdays and Sundays, (b) the big room with “U-shaped” tables and delegates would go in to discuss matters on a formal basis (it seems, before entry into the room, the ambassadors would have rehearsed every statement which would be made and would have “staged” the outcome of the meeting) and (c) the third room which is akin to a hall facing the informal room. At the third room, there would be missions who would monitor the Council members and report back to their country. Cardenas said that the Belgian ambassador was stationed there for weeks, and would constantly approach Council members as they walk to pacify them into not doing anything and downplaying the Rwanda crisis. He would tell them that there is no rush and the information Cardenas had received was wrong.
Cardenas and the 2 other ambassadors could not do anything because any move forward would be vetoed. He then went back to his Ministry of Foreign Affairs for permission to go public in the media. And he was allowed to do so, and only after such pressure, the Council had to act.
He was of the view that had the UN put in place a system based on “the responsibility to protect”, then perhaps the situation might have been different as he and the other 2 ambassadors could probably have mobilised support. He said that the decision by the US-led coalition to side-step the Council for the 2nd invasion of Iraq cannot be entirely criticised:
“If there is a failure, it was a collective failure. There are those who have a veto and the counterpart to that is to try and achieve a consensus. It is a failure of the collective system, the international security body failed. ”
As the former chair of the Sanctions Committee for 1 year, he said that the Council made every decision by consensus, and if there was one vote against, the resolution “would not fly”.
He gave an example during the former Yugoslavia conflict where a priest of the Orthodox church had a unique piece of architecture in his church. The priest was worried that the bombings which happened around his area would destroy the artifact. He then caused his country to request the Sanctions Committee for permission to export it to a safe neighbouring country. Oman, for an inexplicable reason, blocked the vote and the resolution could not pass. This happened for one whole year, and fortunately, the piece of architecture was not destroyed. This highlighted the ineffectiveness of the committee because of procedure.
Cardenas said that the structure is “primitive”, for example, the use of sanctions for matters such as the Oil for Food programme by the Sanctions Committee was a wrong decision as the issue was too large for the UN to handle.
Cardenas then moved on the express his view why the General Assembly cannot still agree on a single definition of “terrorism” as shown in the recent summit. He highlighted the fact that after reading the speeches of the heads of state, he calculated that only 39% of the leaders spoke about terrorism whereas only 46.6% of leaders from Latin America spoke about it. To condemn terrorism in the widest possible sense is easily accepted. But for the international community to agree on a single definition is virtually impossible.
He said that it was not so much the hurdles posed by the situation in the Middle East or by “freedom fighters” such as HAMAS but it is “way beyond that”. Even Argentina is reluctant to sign onto a common definition for 2 reasons:
1. There are leaders in Argentina now who have openly admitted placing bombs and killing innocent victims before coming into power. One such example was in an interview with a journal in 2001 where the now Minister of Foreign Affairs admitted to this and showed no remorse.
2. There is currently a large guerilla movement in Colombia. Para-military organizations number about 20,000. Two adjacent countries to Colombia are Ecuador and Venezuela. They have refused to consider these movements in Colombia as “terrorists” and they want to stay as far as possible from the internal conflict of Colombia lest it affects them.
Thus, the problem with the definition issue is not only Africa or the Middle East but also Latin America.
A question was then posed whether the US was right to go it alone when it invaded Iraq because the Council would not have fully supported the invasion had it gone before them for discussion.
Reisman responded by criticising the Council and the Millennium Goals Declaration which “do not amount to much – the introduction of the concept of “responsibility to protect” has added very little”. He cited the example of Darfour where a genocide is going on and what progress is there to assist? That the matter be referred to the International Criminal Court! “It is unreal in the UN — today I am talking to Italy and Japan, passing resolutions but not doing anything. People from the Holocaust understand the difference between words and deeds.”
He then took umbrage with the Security Council and said “100-1 = 0”, and said that the unilateral action by the US in Iraq was probably right. There would have been no Kosovo if not for the US. In terms of real human rights reform, he has seen little change.
Corell defended the Council and said that if it does not do anything but another nation unilaterally does, then Council gets off the hook free. Those nations who wish to veto should be forced to put themselves on record and face the consequences. He concluded to say that there must be a balance between being an idealist and a realist. The strengthening of the UN is necessary as it “remains the best hope of our day”. It is an inter-governmental organisation of sovereign states and the ambassadors of the states should “look beyond the horizons and not narrowly for their vested interests only”.
Czech Bar Association reception at the Prague Castle grounds
After an exhausting day, it was necessary to unwind and after losing my way several times, I managed to join the reception at about 2015. The castle grounds and the buildings are absolutely beautiful — very gothic — and it was a good way to end the day.
Source: https://www.malaysianbar.org.my/article/news/bar-news/news/special-report-iii-from-prague-legal-aid-iba-international-courts-and-un. Archived at https://perma.cc/XL4C-KPKE
