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Contributed by Ravi Nekoo

Legal Aid in Malaysia

Both the Government and the Bar Council provide legal aid in Malaysia. The provision of legal aid by the Government is through its Legal Aid Bureaus located in all states while the Bar Council provides legal aid through its Legal Aid Centers in all states in West Malaysia. For the sake of clarity, whenever mention is made about the Legal Aid Bureau in Malaysia, it must be borne in mind it refers to the Government funded Legal Aid Bureau. Reference to the Legal Aid Centres refers to the Bar Council Legal Aid Centres.

The Government legal aid is administered under the Legal Aid Act 1971 whereas the Bar Council provides legal aid under the provisions of the Legal Profession Act 1976. The differences between the between the Government Legal Aid Bureaus and the Bar Council Legal Aid Centers is set out below. 

Differences between Government and Bar Council Legal Aid

Government Legal Aid Bureaus	Bar Council Legal Aid Centers
Do not represent those charged with a criminal offences who intend to claim trial (subject to Section 10 Legal Aid Act 1971)	Represent those charged with criminal offence who intend to claim trial
Receive government funding	No government funding - funded by the lawyers
Do not assist documented or undocumented foreign nationals	Assist documented and undocumented foreign nationals
The Legal Aid Act 1971 allows for waiver of filing fees for documents filed in court	No waiver of filing fees for documents filed in court

Legal Aid – Whose responsibility?

For the past 27 years, the Bar Council Legal Aid Centres have singularly shouldered the responsibility of providing legal representation to the impecunious in cases involving criminal defence work and public interest litigation. The Bar has also championed the rights of migrant workers, the orang asli and urban settlers and provided legal assistance to them through its Legal Aid Centers. It has now come to a stage where the Government funded Legal Aid Bureaus, the Prisons Department and even the courts are referring cases to the Bar Council Legal Aid Centres.

The Bar Council has been running its Legal Aid Centres since 1982 and has now established at least one Legal Aid Centre in every State in West Malaysia. The Malaysian Bar has always been proud of the fact that the Legal Aid Centres are unique in that the program is solely funded and managed by its own lawyers. Every year the legal aid centres receive an annual fund of RM1.3 million (approximately USD340, 000). This money is then disbursed to each State to serve the impecunious and the unrepresented. We have been diligently doing this for the past 27 years.

Our legal aid centres have thus far complemented the work of the Government Legal Aid Bureaus. The Legal Aid Bureaus receive about RM9 million annually from the government. As the government Legal Aid Bureaus do not have a comprehensive criminal defence scheme, all criminal cases are handled by the Bar Council Legal Aid Centres.

The Bar Council has for too long shouldered this responsibility and the Government may have conveniently forgotten the fact that the resources of the Bar are not enough to solve a national problem.  The Bar Council Legal Aid Centres are but a mere stop gap solution that has prodded on for far too long in trying to manage a Government problem. 

Legal Aid in Malaysia – Legal Aid in Eight Other Countries

A study of the legal aid services provided by other countries shows that in Malaysia, the Government is not doing enough to serve the needs of those people who require legal services but are not able to afford it. Any legal aid scheme that does not extend its services to provide legal representation to an arrested person cannot be taken seriously and it is respectfully pointed out that the Government Legal Aid Bureau is one such scheme.  Though, it may be that, the Legal Aid Bureaus in some States do make prison visits and provide legal advisory services to the prisoners, these Bureaus do not undertake the criminal defence of the accused in court as there are restrictions placed in their scope of work by the Legal Aid Act 1971.

The 2nd Schedule specifically states that the Legal Aid Bureau would only represent accused persons who intend to plead guilty to a criminal charge or those charged under the Minor Offences Act 1955. The Bureau also provides legal representation to children. This consequently means that the more serious offences under the other penal provisions are not included in the 2nd Schedule of the Legal Aid Act 1971. Though Section 10 of the Legal Aid Act 1971 provides that the Minister may vary the 2nd Schedule to include other offences, to date this has not been done. Then there is an additional sub-section namely Section 10(2A) that provides that the Minister may authorise the Director General of the Legal Aid to provide criminal legal aid, in a particular case of hardship. This discretion is exercised on a case-to-case basis and it is not known if the discretionary power has ever been exercised by the Minister. It is respectfully pointed out that these provisions make the Legal Aid Bureau lame.

Comparatively, the legal aid services provided in Philippines is poles apart from that of the Government funded Legal Aid Bureau. In the Philippines, there is the Public Attorney’s Office (“PAO”). This office is regarded as the principal legal aid office and comes under the Department of Justice. The PAO enjoys autonomy and the Public Attorney, the head of the PAO, has security of tenure in her employment. The autonomy of the PAO’s office was clearly seen in 2002, when the PAO extended provisional assistance to its former President Joseph Estrada when he was charged for corruption.  There were nine (9) court appointed lawyers from PAO rendering free legal representation to the former President.

As for the Bar Council Legal Aid Centres, we have been providing legal representation to the unrepresented accused persons on a pro bono basis. The Legal Aid Centres depend solely on the lawyers to give up their own time and render voluntary services. Whilst the Bar is proud of its members who have steadfastly assisted the Centres when called to do so, but the fact remains that access to justice is a fundamental right and any such right cannot be provided on a voluntary basis.

This table provides a comparison of the legal aid systems in different jurisdictions. It would be seen that there is a common thread that binds most of the legal aid providers with the services that is rendered. That common thread is premised on the principle that access to justice is a fundamental right and services are rendered to meet this principle. The exception, respectfully, seems to be our Government funded Legal Aid Bureau.

Shortcomings of Legal Aid in Malaysia

An analysis of the aforesaid table would reveal the following:-

Recommendations

In a nutshell, there are inadequacies in the Legal Aid Centres managed by the Bar Council as well as the Legal Aid Bureau. The inadequacies of the Legal Aid Centres are not the doing of the Bar Council but really because the Bar Council does not have the resources to tackle a national problem. It is respectfully submitted that to be ranked as a mature legal aid service provider there is a need to revamp the current structure of legal aid provided by the Legal Aid Centre as well as the Legal Aid Bureau.

It is respectfully opined that the Taiwan Legal Aid Foundation is a good model to follow. The Legal Aid Foundation is Taiwan is independent. At its helm are people who have earned the respect of the society. They comprise members of the judiciary, the Ministry of Justice, law professors and leaders of the community. Currently, a leader of the disabled group and a leader of the aboriginal group serve in the Board of Directors.  It has offices throughout Taiwan. There is transparency and accountability.  It has extended its service to many areas of the law. Its members make home visits where the client is not able to attend at the legal aid office. The Taiwan Legal Aid Foundation is involved in law reform work. They have recently implemented a project to render legal representation to the arrested persons at the police stations. The Taiwan Legal Aid Foundation has only been in existence for the past 5 years but it is dynamic and progressive and has received the vote of confidence from the people whom it had served and currently serving. It receives an annual budget of USD27 million from the government. The Legal Aid Foundation is Taiwan had flourished mainly because of the Government support. Such government support is lacking in Malaysia. It is time the Government admits that there are flaws in the current legal aid structure and takes proactive steps to reform this structure. This must be done as access to justice is a fundamental right and people in Malaysia deserve this right to be made available to them, whenever it is needed, regardless of their social standing.