Yang Arif Datuk Vazeer Alam bin Mydin Meera; Judge, Court of Appeal;
Yang Berbahagia Tan Sri Dato’ V.C George; Former Judge, Court of Appeal;
Yang Berhahagia Dato’ John Louis O’Hara; Former Judge, Court of Appeal;
Yang Berbahagia Dato’ Abdul Fareed Abdul Gafoor; Chairperson of the National Legal Aid Committee and Former President of the Malaysian Bar;
Current and Former Officer Bearers of the Malaysian Bar;
National Legal Aid Committee Chairs and Deputies;
Learned Panellists and Moderator;
Members of the Bar; and
Ladies and Gentlemen.
- A very good morning to everyone. On behalf of the Bar, welcome to today’s 40th Anniversary of Legal Aid by lawyers in Malaysia. I am humbled to be among so many eminent individuals in the legal profession today in celebration of this wonderful occasion. As a former Chairperson of the Bar Council Legal Aid at Selangor and a member of the National Legal Aid Committee from 2005 to 2006, I am no stranger to our legal aid programme. It is something that I value and appreciate tremendously. That is why I feel extremely privileged to be here with you.
History and Importance of Legal Aid by Lawyers
- All of us here recognise that legal aid fundamentally pertains to one’s access to justice. In an ideal world, access to justice would be an innate right that should be accorded to all individuals, irrespective of their rank, financial or social status1. I affirm the words of Gabriela Knaul, the United Nations Special Rapporteur on the Independence of Judges and Lawyers, in saying that “legal aid is both a right itself and an essential precondition and enjoyment of a number of human rights, including the right to a fair trial and to an effective remedy”.
- 40 years ago, a few lawyers had the foresight to establish the first Legal Aid Centre (“LAC”) in Bayan Lepas, Penang amongst them is one of its great pioneers, Mr. Cecil Rajendra who is here with us today and who has my profound respect and gratitude for helping to start it all. These lawyers along with the paralegals and university lecturers that supported them are the ones who saw to the legal needs of the needy in their midst, who saw no return monetary or otherwise save for the gratitude of those they represented when their cause for justice was won.
- Today, we celebrate that first step that they took all those years ago in Penang and the lawyers that follow in their footsteps, now in every state, across the country. Continuing to toil for equal justice for all.
- Our LACs are indeed one of a kind — nowhere in the world will we find Members of a Bar association footing the bill for their legal aid programme out of their own pockets. This alone, I believe, speaks volumes to the commitment that we have towards upholding human rights, particularly the right to a fair trial.
Ladies and gentlemen,
- Legal aid is a noble idea. No right-thinking person could hope to dispute that. But to join the cause of legal aid and to serve? That is a different matter entirely. Those that serve the cause are in a class of their own. The reality is that legal aid is a heavy burden that requires uncommon fortitude. It requires strength of will and a heart to serve. Those that we serve are the poor and the downtrodden-fellow citizens that would make many in our society wary and uncomfortable. It would be so much easier to ignore or forget these people and their problems. To cut them loose and let the harsh reality of this world devour them. That would be the easy thing to do. But that is not what we are about. We do not take the easy route. We deliberately choose the harder path. We take on the burden of those who have nowhere to turn to. That is why I believe that lawyers and staff at our LACs are heroic individuals making real differences in our society. They volunteer their time and expertise and they pick up the fallen and the forgotten.
- I am proud to say that our LACs has made great strides in delivering legal expertise to those who are in need of representation, both Malaysians and non-Malaysians. Our LACs continue to champion the rights of the most vulnerable among us, including migrant workers, women and children as well as our refugee population, who are the first groups at risk of their rights being violated and ignored if they cannot access legal aid. This is especially pertinent in a post-pandemic setting2, where cases of drug abuse3 and domestic violence4 have been on the rise since the pandemic came about.
- Furthermore, our LACs continue to be the ground where we cultivate the spirit of duty in every pupil aspiring to be a lawyer, where one must serve at least fourteen (14) days at the beginning of their career. I must say, that an LAC is not merely where one puts some miles in one’s soul before one decides to park it behind a desk. I am glad to know pupils who were moved afterwards to commit their career to the cause that our LACs continue to champion. And I believe that the support of these pupils is crucial to each LAC’s success, as they contribute to catering for the large volume of people in dire need of legal advice and representation on a day-to-day basis.
The YBGK — A Successful Partnership in the Access to Justice
Ladies and Gentlemen.
- In tandem with the Bar, the Government has also played a significant role in bolstering the access to legal aid in recent times. In 2011, the Yayasan Bantuan Guaman Kebangsaan (“YBGK”) was launched as a vehicle for a robust partnership between the Bar and the Government in ensuring that legal aid5 is even more accessible.
- The YBGK also represents a major milestone for our criminal justice system, as it gives real meaning to our constitutionally enshrined rights of equality before the law. As of now, there are a total of 2179 participating YBGK lawyers in Peninsular Malaysia who are enabling the less fortunate with proper representation and legal expertise.
- The existence of the YBGK, in my humble opinion, is also one of the most successful private-public partnership in our country to date — it complements the work of our LACs. A case in point would be the issue of representation during remand. Prior to the establishment of the YBGK, the vast majority of people arrested by the police were unrepresented during remand, either from lack of financial means or awareness. Thus, in its 1st year of operations6 alone, the YBGK has assisted roughly 40,000 Malaysians in remand, and as of the end of 2020 it has handled almost 216,000 cases, which is truly a staggering amount. The YGBK’s efforts must be commended, as it continues to address those in need today.
- With that said, the YBGK can benefit from more support — compared to the volume, expertise and depth of service that YBGK lawyers provide, they receive very little payment in proportion to the work done. On this, I am sure what is motivating them is but a sense of satisfaction one gets from serving the public. YBGK is a boon to society and the cause of justice. Having said that, I do have a few suggestions to share regarding YBGK and the legal aid programme overall.
The Way Forward
- While its establishment is a step in the right direction, the YBGK is in dire need of additional funding. Based on recent records from the YBGK office, year-on-year its funding has been less than consistent, it received RM9 million in 2018, RM5 million in 2019, RM9 million in 2020 and only RM5 million this year. At our current estimates, RM5 million is simply not enough as it is less than half the annual budget applied for by YBGK this year, which was RM 13 million. We at the Bar view that there is a good chance that YBGK may run out of funds at the end of 20217 and is already struggling with its operational expenses.
- That is why recently, the Bar took the initiative by calling on the Government to bolster its funding for the year 2021 to RM8.1 million and to disburse the remaining funds that had been approved in prior years. I believe that with our combined voice we can persuade the Government to increase funding for the YBGK, which is in dire need of it.
Increasing Awareness on Legal Aid Programmes
- While legal aid in our country is developing at a steady pace, its services must be more visible to the public. As Lord Heward, the former Lord Chief Justice of England once famously stated “Justice must not only be done but must be seen to be done”. A study conducted by the United Nations Office on Drugs and Crime8 conducted jointly with the International Centre for Law and Legal Studies found that in Malaysia alone only a comparatively small percentage of guilty pleas in the Sessions and Magistrates Courts were represented by LAC or JBG, and this was partly due to the lack of awareness amongst these individuals facing serious legal challenges.
- With that said, I believe that outreach by the Government and lawyers to educate the public on the existence of our legal aid programs are of pivotal importance. In 2018, the LAC in conjunction with the United Nations High Commissioner for Refugees (“UNHCR”) conducted a legal outreach programme to provide legal awareness to refuges in Malaysia and the different laws impacting them. The Refugees and Asylum-Seekers Legal Aid Scheme (“RALAS”) was jointly organised by the Bar Council and UNHCR Malaysia and was the first of its kind officially launched9.
- Aside from that, I welcome our Chief Justice’s recent practise direction10 No.11 of 2021 where Her Ladyship directs that a suspect must be given the chance to engage a lawyer of his or her choice and more importantly any Magistrate or Session Judge must inform the suspect that they have the right to free legal representation from the YBGK should they fulfill the requisite conditions as set forth in the said practice direction.
Ladies and Gentlemen.
- I believe that the LACs and the YBGK should work hand in hand to complement each other. While the YBGK plugs some of the gaps of the LAC, the LAC still bears the brunt on covering cases involving family and industrial matters while remaining the only legal aid organisation that assists foreigners and migrants.
- To quote Sadiq Khan, the current Mayor of London “legal aid is central to righting wrongs and rectifying injustice”. We at the Malaysian Bar will continue to call for the protection of all vulnerable groups including women and children who face increased risk of abuse especially emerging from an era of constant lockdowns. We would like to see legal aid being employed as a means to rectify these injustices through timely advice and representation. The Bar will do what we can to support and fund this endeavour and will not cease on our advocacy of the same.
- Overall, I am confident that in partnership with the Government, with entities such as the YBGK, increased funding and the right policy decisions, as well as the good work that our LACs are already doing, we are on the right track to ensuring that legal assistance is readily available to all of those who need it and not just to those who can afford it. Our legal aid’s contribution to society is indeed truly unique, I know no other professional body providing such a service to society.
- Before I conclude, I would like to take this opportunity to thank the current Chairperson of the National Legal Aid Committee, Dato’ Abdul Fareed Abdul Gafoor, the Co- Chairpersons of the YBGK Mr. S V Namasoo and Mr. Rajpal Singh Muktiar Singh. They stand tall on the shoulders of previous chairs and leaders of the cause of legal aid in the country.
- I would also like to thank the current Bar Council and previous Bar Councils over the years for their steadfast support of the cause of legal aid and access to justice. Legal aid would not have flourished without the enabling environment that a succession of Bar Councils have provided.
- I convey my heartiest congratulations to all the recipients of the “Legal Aid Champion” Certificates, may your wealth of contributions to the betterment of our legal aid programme serve as an example for generations of lawyers to come. Finally, I would like to acknowledge all the heroic men and women who have given their time, dedication and expertise to the cause of legal aid over the years.
- With that, I hope that all of you will have a pleasant, productive, and fruitful programme ahead.
6 Ibid, 7
8 United Nations Office on Drugs and Crime (UNODC). (2016). Global Study on Legal Aid: Global Report. New York: United Nations Development Programme.
9 Ibid, 3