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马来西亚律师事务会所扮演的角色研究--英国论文代写范文精选

2016-01-19 | 来源:51Due教员组 | 类别:更多范文

51due英国论文代写网精选paper代写范文:马来西亚律师事务会所扮演的角色研究”。这篇文讨论的是马来西亚律师事务会所里进行保护人权的作用区域,鉴于马来西亚的社会背景,我们分析这一现象的关键特征和功能。马来西亚律师事务会所是一家专业机构,用于建立马来西亚半岛的律师职业活动和对其产生监管作用。比较此律师事务会所和世界各地的其他协会的功能,可以概括以下常见功能:首先,其核心目的是保护法律职业的声誉。同时,维护正义的事业,同时表达对法律的尊重,以及对人权的保护。可以认为,这两个主要功能发挥重要作用,因为保护法律职业的声誉意味着建立信任的措施和维护正义的事业,而表达对法律的尊重则是创造机会来改进法律体系。


I. THE ROLE OF MALAYSIAN BAR TO HUMAN RIGHTS PROTECTION IN LEGISLATIVE AND JUDICIAL AREA

While discussing the role of Malaysian Bar in the human rights protection area, it is important to refer to the background of this association, its key features and functions. Malaysian Bar is a professional body, which is established for the lawyers of peninsular Malaysia professional activity regulation.

While comparing the Bar with other associations, functioning all over the world, it is possible to outline the following common functions, inherent to these organizations. First of all, its core purpose is protecting the reputation of the legal profession. Also, it is to uphold the cause of justice while expressing its approaches towards legislations. In the light of the human rights protection, it is possible to say that these two main functions play significant role because protecting the reputation of the legal profession implies confidence-building measures and upholding the cause of justice while expressing its approaches towards legislations creates the opportunity of implementing some improvements into the current legislative system.

A. THE MALAYSIAN BAR’S ROLE IN LEGISLATIVE AREA

The Bar of Malaysia has got different committees, among them there is a Human Rights Committee. The establishment of this committee has been carried out under the Human Rights Commission of Malaysia Act 1999, Act 597.[1] The core aspect of the Commissions’ activity is carrying out the educative process in the area of human rights protection, developing advises in the legislation and policy areas and finally it is to investigate complaints from the citizens.

While taking in consideration the fact that the Bar of Malaysia is carrying out its core activities in accordance with the Federal Constitution of Malaysia, the commitment of nation to the rule of law is reiterated by the constitution and that issue, in turn, guarantees the individuals to have the access to the legal assistance. In accordance with the Article 8: “All persons are equal before the law and entitled to the equal protection of the law” and Article 5(2): “Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.”[2]

It is important to make an emphasis that there is a guarantee, which has been developed by the legislation specific to the legal profession, which provides the lawyers of Malaysia with the means of effective self-regulation. These documents are the following: Legal Profession Act 1976, Legal Profession (Practice and Etiquette Rules) 1978 and Legal Profession (Publicity) Rules 2001 and also there are several constitutional guarantees in the Criminal Procedure Code. [3]

Unfortunately even while taking in account all the constitutional and statutory guarantees, the Malaysian lawyers face with the problems of being subjected to undue harassment, intimidated and interference by the authorities. Among these authorities there are the law enforcement agencies - Malaysian Anti Corruption Commission, police, security services etc.

Finally, it is important to pay additional attention to the fact that the climate of intimidation and fear, which is the common for all the lawyers in Malaysia (including the representatives of Malaysian Bar) has its negative impact on the performance of their recognised professional duties. It has the corrosive effect for the access to the justice and it eroded the confidence of public concerning the effective delivery of justice.

In accordance with the statistical data, concerning the Malaysian constitutional cases, it is possible to make a conclusion that these cases cannot be considered s complete ones if their mention is not completed with few cases of success from a human rights' viewpoint. The released of the detained under the ISA related to the following four cases: Dato' Amar James Wong Min Kee Tan Boon Liat, Tan Sri Raja Khalid and Jamalludin Osman[4]. More than that in the last three cases, the statutory provisions have been struck down as unconstitutional.

Experts consider the Nordin Salleh case as the one, which has made the greatest contribution to the promotion of human rights in Malaysia. Even while talking in consideration the fact that there has been a course of striking down an anti-hopping provision in the Kelantan Constitution, which has violated the right for the freedom of association(Article 10 (1) (c) of the Federal Constitution), the liberal principles of constitutional interpretation have been accepted by the Supreme Court.

Finally, it s important to pay additional attention to the fact that the Nordin Salleh case played a role of the spur to the Court of Appeal and under the intellectual leadership of Gopal Sri Ram JCA several cases have provided the expansive interpretation to such constitutional expressions as “right to life and liberty” and “equality”. That is why the complex of the achievements of the Nordin Salleh case have forms the impressive body of constitutional law, which includes the developing of the remedies in the cases of the fundamental human rights violation.

B. THE MALAYSIAN BAR’S ROLE IN JUDICIAL AREA

First of all, it is important to make an emphasis that in Malaysia, judicial branch of power is theoretically considered to be independent from the executive and the legislative branches of power. At the same time, many of the judicial positions are held by the supporters of the government. [5]

In order to outline the key role of Malaysian Bar in protection of human rights in the judicial area, it is important to refer several historical cases, related to the human rights and freedoms violations.

In 1960-s, the most important human right cases were Stephen Kalong Ningkan, Assa Singh and Karam Singh. In both cases, there was a clear inconsistence between the law-based executive action and the letter and spirit of the fundamental liberties, enshrined in Part P of the Federal Constitution. That is why, the case of Karam Singh, may be considered as a dangerous precedent. This case has approved the completely subjective discretion of a detaining authority. That, in turn, implied that such discretion could not be reviewed by Court. That is why the liberty of an individual, protected by Article 5 has been eroded.

The decade of 1970-s is considered as the worst period of retime in the light of the human rights recognition by the courts. At that time all the actions have been of the executive branch of power have been carried out under power conferred by acts of Parliament and approved and endorsed by the Judiciary. One of the worst cases of that time was the case of Loh Wai Kong v. Government of Malaysia. In this case, the right of the citizen to an international passport has been rejected by the Federal Court in spite of his freedoms of liberty and movement.

The same situation was typical in 1980-s and 1990-s. The most significant cases were the Merdeka University case, Sim Kie Chuan v. Pudu Prisons case, Louis Cheah case, Mark Koding case, Karpal Singh case and Theresa Lim case. All of them have violated the fundamental constitutional rights of people and in each case the state of the Federal Court or of the High Court action has been upheld. The disharmony and disequilibrium, which has been inherent to the above listed cases has not been included into the area of the Malaysian law development interests.

In accordance with the Justice in Jeopardy Report, 2000, "The Judiciary also has an important role to play in softening the effect of the laws through interpretation and application of the principles of justice and equity. We urge the judges to have the courage to rise up to this challenge. Otherwise, judges will continue to be considered as a tool to quell political dissent and free expression."[6]. Such approach will provide the judicial system of Malaysia with creditworthiness and people would feel more protected in the light of their basic human rights.

The situation development for the last five years looks the following way. There were several resolutions conducted by the Bar, which have criticized the conduct of Judges, concerning the human rights protection cases. As a result, the injunctions, restraining further meetings of the Malaysian Bar have been granted in accordance with the Legal Profession Act, 1976[7].
That is why it is possible to make a conclusion that at the moment, the justice in the light of human rights and freedoms protection in Malaysia is not on the highest level and the role of Bar in this situation improvement should imply the correction of the Judges’ conduct. There should be a fair punishment for the representatives of Justice and the educative work should be constantly carried out among the lawyers.

C. THE ADVANTAGES, DISADVANTAGES AND THE REASONS

While taking in consideration the above listed facts, concerning the role of Bar in the human rights and freedoms protection in Malaysia, it is possible to outline the following advantages and disadvantages of the system.

First of all, it is important to make an emphasis that the educative work is being carried out among the representatives of Justice, and also, the citizens of the country are provided with an opportunity of getting the additional and complete information, concerning their basic civil rights and freedoms such as Liberty of the person (Article 5 of the Federal Constitution of Malaysia (the Constitution)), Protection against slavery and forced labor (Article 6 of the Constitution), Protection against banishment; freedom of movement (Article 9), Freedom of speech and expression (Article 10(1) (a) of the Constitution), Freedom of peaceful assembly (Article 10(1)(b) of the Constitution); Freedom of association(Article 10(1)(c) of the Constitution) and the Principle of judicial review (Article 121).[8]

Also, among the positive aspects of eth Bar’s role in the human rights protection it is possible to consider its impact on implementing the changes and reforms into the legislation.

While taking in consideration the judicial area, the main advantage of the Bars’ activity is the controlling and correction of the Judges conduct and implementing the practice of punishing those representatives of Justice, which do not take in consideration the basic constitutional rights of people while making their fateful decisions. Such practice both corrects the human rights violations which have already taken their place and also it implements the preventive measures for the future activity of Judges.

While taking in account the disadvantages of the Bars’ work, it is possible to say that the main mistake of the organization is the lack of strictly-defined measures in punishment for the human rights violation in the Courts and also there is a lack of informative work in this area. In order to achieve the highest effect from the preventive measures, the information about them should be better popularized.[9]

Finally, the Human Rights Protection Convention in Malaysia should be developed and implemented into the practice with the help of the Malaysian Bar - it is to be developed by the leading professionals in the legislative area. That would enable the organization to have the total control over the situation and to motivate the Judges to follow the constitution and the convention while making their decisions. [10]
II. THE ROLE OF VIETNAMESE LAWYER GROUP TO HUMAN RIGHTS PROTECTION IN LEGISLATIVE AND JUDICIAL AREA

Vietnamese Lawyer Group (VLG) is the national organization, which has been developed for building of a professional-oriented legal consultancy organization in Vietnam. Its main objective is protection and maximizing the clients’ benefits on the domestic and foreign scales. The main areas of the organizations’ activity cover the following aspects of human life: investment, corporate consultancy, intellectual property protection, insurance of finance and banking, real estates and construction, project and business consultancy, dispute resolution and other.

Violation of basic human rights may take place in all of the above listed areas. That is why, the organization plays significant role in protection of human rights and freedoms.[11]

A. THE VIETNAMESE LAWYER GROUP’S ROLE IN LEGISLATIVE AREA

First of all, it is important to pay additional attention to the basic human rights, which currently exist in Vietnam. According to the Constitution of the Socialist Republic of Vietnam, only one party is allowed to rule - the Communist Party of Vietnam. Other parties are not allowed to participate in the governing process -this issue is considered to be one of the main problems in terms of political freedom of the Country.

The rest of the human rights are represented in Article 5 - Right to Life and Liberty, Article 6 - No Slavery, Article 7 - No Retrospective Criminal Laws/Increases in Punishment or Repeat Criminal Trials, Article 8 - Equality, Article 9 - Prohibition of Banishment and Freedom of Movement, Article 10 - Freedom of Speech, Assembly and Association, Article 11 - Freedom of Religion, Article 12 - Rights in respect of Education and Article 13 - Rights to Property.[12]

It is possible to draw the parallel between the basic human rights of the Vietnam and the activity of the VLG, while taking in consideration the fact that Vietnam is a one-party state and the power is monopolized. In such case the human rights and freedoms are limited and controlled by the government.

During last three years, several repressions of the lawyers have taken their place in Vietnam. As an example, on November 5, 2010, Cu Huy Ha Vu has been arrested and charged with conducting anti-government propaganda for the controversial legal complaints against the authorities. Phil Robertson, the deputy and Asia director at Human Rights Watch has considered this arrest in the following manner: “Cu Huy Ha Vu's arrest is the Vietnamese government's latest salvo in its campaign of repression against independent lawyers and activists who defend human rights and challenge official misconduct” [13]

Other lawyers, holding the same views - Le Cong Dinh, Nguyen Van Dai, Le Thi Cong Nhan, Le Tran Luat, Ta Phong Tan, Tran Quoc Hien, Le Quoc Quan, and Nguyen Bac Truyen have been also arrested, arrested, disbarred, and pressured not to represent their political or religious activists, directed for the human rights protection. [14]

While taking in consideration the above listed facts, it becomes being obvious that the Vietnamese Lawyer Group is not provided with an opportunity of participating in the lawmaking process in the area of human rights protection in particular because the lawmaking process is monopolized by the Communist Party of Vietnam[15].

The main reason for that is tending of the Communist party to keep the power and not to enable people to feel free in their choice, actions and intensions. The strong power does not assist implementation of the key human rights in the country and does not provide a possibility for other legal structures, organizations or single lawyers to carry out the cativiute, related to the human rights protection.

B. THE VIETNAMESE LAWYER GROUP’S ROLE IN JUDICIAL AREA

While discussing the role of the VLG in the judicial area of human rights protection, it is possible to consider other political repressions against the lawyers, who were tending to reach the Justice.

Several lawyers in Vietnam have been arrested for bringing the legal claims against official policies. They have been the representatives of people, who have been incriminated for the nonviolent expression of their religion beliefs or attitudes towards current politician system. Such situation may be considered as the one when the lawyers are to act not in accordance with the general rules while defending democracy or human rights. Lawyers are expected not to work with such processes.

It is obvious that the government should not act in the above discussed manner. More than that, the government should ensure that lawyers can carry out their professional duties free of intimidation and interference. Otherwise the lack of democratic approach towards the human right protection may lead to the rebellions and revolutions in the country because in the civilized world (developed countries) people know about their basic human rights, supported by their constitutions and other legislative acts and they are provided with a possibility of protecting their rights in the case of violation.

As an evident example of not acceptable governmental actions it is possible to consider the situation when the group of lawyers (including the representatives of VLG) has been arbitrarily arrested because they have defended the disputable cases of violation the human right of freedom of expression and association. The official version of the case was the incrimination to the vice president of the Ho Chi Minh City Bar Association, Le Cong Dinh the alleged links with the forbidden Democratic Party of Vietnam. More than that, he has been prosecuted for his legal representation of human rights of such lawyers: Le Thi Cong Nhan and Nguyen Van Dai, and Nguyen Van Hai. As a result, Le Cong Dinh has been sentenced to five years in prison.[16]

While taking in consideration the above listed facts, it is possible to make a conclusion that the legal activities, directed to the human rights and freedoms protection along with the democracy implementing is such type of the legal activity, which may lead to professional degradation or even more to becoming being a prisoner.

That is why, the role of the VLG representatives in the human rights protection in Vietnam is insignificant because of the mass repressions, carried out by the current government of Vietnam. It is possible to assume that the main reason for such behavior of the representatives of power is caused with their desire of total keeping the power, strong positions and authority in the current society.

C. THE ADVANTAGES, DISADVANTAGES AND THE REASONS

To sum up, it is possible to outline key advantages and disadvantages of the VLG role in defending the human rights in Vietnam.

First of all, it is important to make an emphasis that in the current situation with the lack of democracy and possibility of defending the basic human rights and freedoms (which are included into the Constitution of the Socialist Republic of Vietnam), the role of the NLG is insignificant. The main reason for that is the desire of the current government to keep their strong positions.

In the cases when the human rights are protected and every citizen of the country has got the access to the information, concerning the basic human rights, everyone would be tending to apply their basic rights to the practice. That is why there is no mass educative process in Vietnam, concerning the human rights protection.

Lawyers are tending not to work with the cases when the human rights are violated because there is a probability of being repressed for such activity.

While being a representative of the Vietnamese Lawyer Group, there are several more possibilities for protection of the human right in indirect manner. As it has been noted above, the main areas of the organizations’ activity are investment, corporate consultancy, intellectual property protection, insurance of finance and banking, real estates and construction, project and business consultancy, dispute resolution etc. [17]In all above listed areas of human relations, their basic rights- such as Right to Life and Liberty, Right to Equality, Prohibition of Banishment and Freedom of Movement, Freedom of Speech, Assembly and Association, Freedom of Religion, Rights in respect of Education and Rights to Property may be violated.

That is why, while operating in the interest of the clients and resolving their problems, which are not directly related to the human rights protection only, the lawyers, working in the VLG work in the name of the human rights protection.

To conclude this section, it is possible to say that in the legislative area, the VLG is not provided with an option of implementing some changes to the current legislation of the country in the area of the human rights protection. If there are some cases which are directly related to the human right violation, there are mass repressions for such representatives of justice. In judicial area, there are still some cases for the practical application of the currently existing legislation to the cases, when there is no direct violation of the human rights and freedoms and when the right of the citizens of Vietnam may be protected in the light of some other cases.

III. COMPARISON BETWEEN TWO COUNTRIES

First of all, it is important to make an emphasis that Malaysia and Vietnam are completely different in relation to the human rights protection. In Malaysia the education of the population, concerning their basic rights is constantly carried out and in Vietnam this theme is prohibited and lawyers, carrying out such practice are punished.

While comparing the role of the Malaysian bar and Vietnamese lawyer group to human rights protection in legislative and judicial area, the special attention should be paid for the following issues.

First of all, in Malaysian Bar those lawyers who violate the constitution and the human rights in particular, are punished. In other words the representatives of Justice are motivated to make their decisions in accordance with the current constitution of the country. Quite the contrary situation is inherent to Vietnam - lawyers are punished for the human rights protection-related activity.

While comparing the role of the organizations, mentioned above, in the legislative area of the human rights protection in Malaysia and in Vietnam, it is possible to make the following conclusions: first of all, in Malaysia, there is a specially-developed by Malaysian Bar organization - the Human Rights Committee, which carries out the educative process in the area of human rights protection, develops advises in the legislation and policy areas and finally investigates complaints - the cases of the human rights violation.

In Vietnam, the situation looks another way- nobody, but the communist party is provided with a power of creating the law and implementing the amendments to the constitution, that is why the citizens of the country are not provided with a possibility of improving their life standards while changing the legislation.

In the case of the judicial area, the situation in both countries looks the following way. In Vietnam, the VLG has got the possibility of indirect participation in the process of the human right protection. The scheme looks the following way: they are working with other cases - ones related to the investment, corporate consultancy, intellectual property protection, real dispute resolution and others. The wide spectrum of the services, provided by the organization enables its lawyers to operate with the tools of the human rights protection while working with their clients in the above listed areas.

The role of Malaysian Bar in the human right protection in the judicial area is prohibiting the violation of the basic human rights, punishment of the lawyers, who have carried out such illegal action. Finally, in the cases when the human rights violation has already taken its place, there is a possibility of changing the sentence with participation of the representatives of Bar.

To conclude, it is important to make an emphasis that in order to achieve the level of developed countries (such as US) in the area of human rights protection, the following recommendations should be taken in account.

In Vietnam, the democratic approach should be applied to the human rights protection area and the population of the country should know their rights and freedoms in order to defend them.

In Malaysia, the Bar should also pay additional attention to the fair attitude of its representatives to the cases when the human rights are nit protected or even more violated.

Commonly, for Malaysia and for Vietnam, people should be allowed to participate in the legislation improvement because the current and urgent needs and disadvantages of the system are known best of all to the people, citizens of the country, but not to the governmental structures.

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