Thursday, April 08, 2010

"Pay RM50,000" - Are the Malaysian Courts sending a message to us? Do not challenge the government...???

When the courts 'punish' victims of injustice that take the government of Malaysia to court with such exorbitant costs - RM50,000-00, the signal it is sending out to all is that one should not take the Malaysian government to court. Result: Victims may just have to keep quite and suffer the injustice that they are subjected to.

High cost have also begun to scare ordinary Malaysians from taking their disputes with other persons, companies, etc to court - because they just cannot afford to pay such high costs. I remember the day when the Court of Appeal was ordering persons to pay cost of just RM500-00, which is very reasonable. High Court cost should also not be more than RM500-00, or some nominal sum. 
If cost are too high, then the poor, middle-incomed persons will just have no more access to justice through Malaysian courts. 

As it is the cost of lawyers, attending court, filing fees, etc is already high. Now, the Malaysian courts have send a clear message that if you bring cases to court, you risk having to pay a very high sum as cost. This may the strategy of the Malaysian Judiciary to resolve the issue of the 'backlog of cases' - for now, many will not file any cases anymore....especially against the Malaysian government. Courts will now be place for the rich only....

What can the government do.... What can the judiciary do remedy this situation so that Malaysian courts will once again be a avenue that the poor and the oppressed will see as an avenue for justice...and human rights?

Malaysian Bar Council
No. 13, 15 & 17, Leboh Pasar Besar, 50050 Kuala Lumpur, Malaysia
Tel: 03-2031 3003 (Hunting Line) Fax: 03-2034 2825, 2026 1313, 2072 5818

Press Release
Court of Appeal’s decision is regressive
The Malaysian Bar is disappointed with the Court of Appeal’s ruling last week in the case involving former Internal Security Act (ISA) detainee Abdul Malek Hussein.  The decision, which overturns the High Court’s earlier RM 2.5 million award to Abdul Malek Hussein for wrongful arrest and detention, is regressive, and disquieting. 

We are surprised that the Court of Appeal appeared to overturn findings of fact made by the trial judge, who saw the witnesses and heard their live testimony.  Furthermore, the order of costs of RM50,000, especially against a victim of the ISA, is exorbitant, and punitive in nature.

The Judiciary serves as the last bastion of protection against any abuse of power, particularly by those who wield authority, such as law enforcement personnel.  It must operate as a check-and-balance mechanism.  By allowing the appeal, the Court of Appeal has failed in this role.  The judgment is inimical to the safeguarding of the rights of individuals against unlawful arrest, detention and torture.

The Court of Appeal’s arguments reinforce the potential for grave abuse of the ISA’s already draconian and repressive features.  Its standard for the burden of proof regarding the occurrence of torture is unfairly stringent and will, in practice, almost never permit allegations of torture to be substantiated, given that the victims are already in conditions of strict detention and are generally denied access to legal counsel and to all outsiders during the initial 60-day period in custody.

We denounce the detention of persons without trial under any circumstances, as it is an unjustified infringement of universal principles of human rights, and a violation of the Rule of Law and the principles of a democratic Government.  Among other reasons, detention without trial violates a person’s right to be presumed innocent until proven guilty and his/her right to a fair and public trial where he/she may be defended.

We urge the Judiciary to exercise its function of providing the final recourse when rights are violated, and to provide redress against acts of impunity.  We look to the Federal Court to do what is just, and right. 

Ragunath Kesavan
Malaysian Bar

29 March 2010

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