Legal Aid in MalaysiaBy the notion of legal aid, it is a provision of assistance to people who are unable to afford legal representation and access to the court system. Legal aid is usually bestowed upon the deserving public by legal based organizations such as the Bar Council, Ministry of Legal Affairs and other established legal organizations. The existence of legal aid is necessary in providing access to justice by ensuringequality before the law, theright to counseland theright to a fair trial to enable deserving individuals to have the conduit, avenue or access to the professional help they require. By this virtue, legal aid is momentous and paramount in guaranteeing equal access to justice for all.Bar Council Legal Aid Centre (BCLAC)1.0 Background:Bar Council Legal Aid Center was established by the Bar Council. The first of such center was set up in 1980 in the state of Penang as Legal Advisory Centre. This was in accordance to the Legal Profession Act (LPA) 1976, Section 42 (1) (h) which states The purpose of the Malaysian Bar shall be, amongst others, to make provision for or assist in the promotion of a scheme whereby impecunious persons may be represented by advocates and solicitors. The first official Legal Aid Centre was set up in Kuala Lumpur in 1982. In 1983, the Malaysian Bar gave substance to the LPA 1976 Section 42 (1) (h) by passing a resolution to set up its Legal Aid Scheme whereby every practicing lawyer is required to contribute MYR 100 per year towards the scheme. Its head office is the Bar Council, Kuala Lumpur, Malaysia.

1.1 Organizational Structure and BranchesBCLAC has either one or two offices in each state in the Peninsular Malaysia. There are now 15 BCLACs and all are managed by the Bar Council through the National Legal Aid Committee. Each center is headed by a Chairperson assisted by the Management Panel. The Chairperson and members of the Management Panel are all active members of the Malaysian Bar. The center is staffed either by the office administrator, executive officers or office clerks. Lawyers volunteer give free legal advice or represent the clients on a voluntary basis. Refer to Appendix A for list of LAC across Malaysia.

1.2 Finance and BudgetingThe budget of LAC hails from the Bar Council Legal Aid Fund. It is mandatory for members of the Malaysian Bar to contribute a compulsory fee of MYR 100 per year to this fund. The fund receives about MYR 1.3 million per year from Malaysian Bar members, and it also disburses out about the same amount to all BCLACs yearly to operate the centers and also to carry out their outreach activities.

2.0 Function:The Bar Council Legal Aid Centre (BCLAC) was founded by the Malaysian Bar Council with the purpose of providing citizens equal opportunity for the enforcements of their fundamental right to equality before the law. It is one of two organizations in Malaysia which provide free legal advice & representation, and it has branches to represent each state in Malaysia. The BCLAC are actively involved in pro-bono work in the community, and conduct many programs in cooperation with other organization (e.g. All Women Action Society (AWAM), Womens Aid Organization (WAO), Sisters-In-Islam (SIS), Tenaganitas Migrant Workers Desk, Pink Triangle Foundation, and United Nation High Commissioner for Refugees (UNHCR) to provide free legal advice & representation to relevant parties. The BCLAC is funded by the sole contribution of members of the Bar and cases are taken on a voluntary basis by dedicated lawyers. Hinging on this, their services are limited to those who truly have no means to seek representation privately. In a brief manner, the following depicts the function of BCLAC:(i) Provide legal aid services to the impecunious(ii) Attend to complaints from the public against members of the Bar(iii) Manage a compensation fund to protect interests of members of the public whom as clients of lawyers have suffered losses arising out of the dishonesty of lawyers. 3.0 Scope of Statutory Aid:Matters that BCLAC HandlesMatters that BCLAC does not Handle

Criminal OffencesMotor Accidents

Public Interest LigitationDebt Collection

Syariah CasesDefamation Conveyance

Housing / TenancyProbate / Letter of Administration

Domestic ViolenceDeath or Life Sentence

Migrant Issues

Labor / Employment

Passport / Identity Card Problems

BCLAC handles the following cases: Criminal cases, public interest cases, housing/tenancy issues, labor/ employment, family law matters, Syariah (Islamic) family law cases, domestic violence cases, migrant/refugees issues, immigration issues (passport, identity cards) and public interest litigation cases.

4.0 Legal Aid Programs Offered:BCLAC provides free legal advice at its centers and free legal representation at courts in Peninsular Malaysia only. Withal to that, BCLAC also conducts the following programs: 1. Dock Brief ProgramsFree legal services such as mitigation of sentences, bail applications and remand matters to accused at lower courts. Services are provided to those clients who pleaded guilty and need assistance in mitigation (reducing the sentence), bail applications and remand hearings.2. Prisons VisitsBCLAC also provides legal advices to prison inmates and the corresponding action necessary to be taken in follow-up episodes at BCLAC. One of the most notable programs under such scheme would be Kajang Women's Prison Clinic3. Legal Awareness ProgramsBCLAC also offer talks on legal rights and distribute pamphlets at schools, public places, villages, and juvenile homes. In certain notable occasions, BCLACs partner with nongovernmental organizations such as womens organization and youth organizations in organizing legal awareness programs.4. Skill Development ProgramsOn top of that, BCLAC also organize training for volunteer legal aid lawyers on Family Law, Human Rights, Syariah Law, and Criminal Law, among others. 5. Migrant Workers Clinic (MWC)This is a joint program with Tenaganita's Migrant Workers Desk, which BCLAC provides free legal advice, representation and assistance to deserving migrant workers (who came legally to Malaysia) for instance, in the event of being abused and exploited. They also liaise with relevant authorities such as but not limited to Police, Labour and Immigration Department and Inland Revenue and coordinating/participating in negotiating with ex-employers.6. LAC/ United Nation High Commissioner for Refugees ClinicThis is a joint program with UNHCR (United Nation High Commissioner for Refugees). They provide legal advice and assistance on refugees issue to refugees such as advises, counsel and assisting the refugees on legal issues.

5.0 Application Process and Eligibility:Applicants will be interviewed to review his/her eligibility for their services, using the Means Test. The counselors will then review the applicants case and provide guidance on future actions required. If the applicant has not brought all the required documents, the counselors may provide preliminary advice, but will require these documents to be submitted to proceed further.The criteria for people who qualify for legal aid from the BCLAC are:Applicants whose monthly income, after deduction of monthly expenses, should be: Single person : RM650 Married couple (joint income) : RM900Example: Single person Salary : RM1000 p/m Monthly exp.: RM450 Balance : RM550 (QUALIFIED)Monthly expenses include rental, utility bills, medical bills, personal expenses, monies given to support parents/family, etc. When visiting the LAC, an applicant should provide proof of income (e.g. payslip), monthly expenses (e.g. rental receipt, medical expenses etc.) and details of the case he/she seek help on.On top of that, the applicants must not have in possession of assets worth over MYR 45,000 (for house/flat), MYR 20,000 (car), MYR 4,500 (motorcycle) and MYR 5,000 (in savings account). These figures are solely intended for guidance purposes, some applicants are deemed eligible on the basis upon merits of the case. The figures may also vary from state to state in Peninsular Malaysia, where it largely boils down to the standard of living in each state. If the applicant is qualified for legal aid services, they need to pay disbursements either to the BCLAC or the volunteer lawyers to cover the cost of transportation for the lawyers to go to court and documentation fees. Disbursements range from about MYR 300 to MYR 700 depending on the case. Disbursements can be paid in installments. Lawyers do not charge professional fees for legal advice and legal representation to the client.Even if an applicant does not qualify for the afore-conferred requirements, the LAC is still willing to provide basic guidelines and directions for further action to walk-in clients. They also hold a directory of legal firms available in the vicinity. They do not entertain legal queries via the telephone, to ensure the integrity of any information given. On top of that, keep in mind that not all cases require legal representation. For instance, for a small claims case no legal representation is necessary. You only need to submit a form to the Magistrate Court 9, Jalan Duta (available there). Small claims cases include all actions where the money damages claimed are not in excess of RM500.

Legal Aid Bureau (Biro Bantuan Guaman)1.0 Background:Legal Aid Bureau (LAB) was established in 1970 under the semblance of the same name, as Legal Aid Bureau. In the wake of subsequence, in 1971, the Malaysian Government passed the Legal Aid Act 1971. The Act makes provisions for the grant of legal aid to certain persons and for matters connected with it. JBG is administered by the Legal Affairs Division of the Prime Ministers Department. The status of Legal Aid Bureau was elevated to a governments department in January 2010. Its head office is in the Federal Administrative Centre, Putrajaya, Malaysia.1.1 Organizational Structure and BranchesLAB has offices throughout Malaysia. The Minister appoints from amongst members of the Judicial and Legal Service a person to be or to act as a Director General. The Director General shall prepare and maintain panels of solicitors willing to investigate report and give an opinion upon applications for the grant of legal aid, to act for persons receiving legal aid or to give legal advice under the provisions of this Legal Aid Act 1971. There may be separate panels for different purposes and for different courts. Refer to Appendix B for list of branches of LAB.

Figure 1: Organizational Chart and Branches of Legal Aid Bureau1.2 Finance and BudgetingThe budget hails from the Malaysian Federal Government. The allocation for 2014 is approximately MYR 2.5 million. This amount will cover the expenses to run JBG offices (including purchase of stationery and other office materials), promotional works, and payments to JBG panel lawyers (about MYR 200,000 yearly). Salaries to JBG lawyers, officers and staff are not included in this amount and come separately from the salaries for civil servants under the Federal Government.2.0 Function:Synonymous and to close functional proximity with Bar Council Legal Aid Center, Legal Aid Bureau (Biro Bantuan Guaman) isanother organization which providefree legal aid to the general public in Malaysia.It is a governmental body, under the jurisdiction of Bahagian Hal Ehwal Undang-Undang, Jabatan Perdana Menteri (LegalAffair Division, Prime Ministers Department). Provision of legal advices (orally) and legal assistance to deserving members (with limited means of doing so) of the public are its general objectives. Consubstantial to the Legal Aid Center (LAC) run by the Malaysian Bar Council, the BBG provides free legal advice and representation to individuals who are deemed to have passed their qualifying criteria. Withal to that, they also provide subsidized legal services and in the event that one does not qualify for this either, guidance will still be provided nevertheless. Its specific functions include the followings:1. To give legal advice on all legal matters (Fourth Schedule)2. To represent or provide legal assistance in proceedings in all courts in Malaysia within the jurisdiction as provided in the Second Schedule (criminal jurisdiction) and the Third Schedule (civil jurisdiction) Legal Aid Act 19713. To provide mediation services4. To promote legal awareness to the general public on their rights under the law.

3.0 Scope of Statutory Aid:The LAB provides legal advices on all aspects which pertain to the law. The main distinction between the LAB and LAC is that the LAB will only represent clients in criminal cases where the client pleads guilty to his or her charge. The exceptions to this are in small criminal offence (Kesalahan kecil jenayah) and child criminal (Jenayah kanak-kanak) cases. Cases may be referred to the LAC or their external panel of lawyers but the cost is borne by the BBG in as much as clients fulfill their qualifying criteria and their cases are within the scribed purview of legal assistance. The followings represent the jurisdiction of BBG:Matters that LAB HandlesMatters that LAB does not Handle

Syariah Family MattersCriminal Case where the person charged intents to claim trial.

Civil Family MattersDoes not assist legal migrants or foreigners

Civil Cases*

Criminal Cases on Limited Basis*

Mediation for Syariah and Civil Cases

Notes:1. Civil cases as afore-conferred, are inclusive of the following cases: a. workmen's compensationb. padi cultivatorsc. small estate (distribution)d. road accidente. moneylendersf. hire-purchaseg. tenancy mattersh. probate and letters of administrationi. adoptionj. consumer claims

2. Criminal casesLAB only handles criminal cases where accused plead guilty and need assistance with mitigation. It has a constrained boundary in handling criminal cases, of which they are identified as per following:(i) Representing a child offender charged with criminal offences in proceedings in the Court For Children (in camera) or in Open Court under the Child Act 2001 [Act 611] in the event that the child offender is charged jointly with an adult (ii) Representing an accused person charged with criminal offences under the Minor Offences Act 1955 [Act 336]. (iii) Representing an accused person who pleads guilty to the charge and wishes to make a plea in mitigation in respect thereof.Any other criminal cases that falls beyond the defined constraints or boundaries of LAB, is referred to BCLAC.

4.0 Documents Required for Application Purposes:The following documents are required when visiting a LAB branch:1. Identity Card2. Childrens identity cards / birth certificate (if applicable)3. Marriage certificate (if applicable)4. Divorce certificate / papers (if applicable)5. Details of defendant (accused party) e.g., name, age, job, employer, etc.6. Any other supporting and/or relevant documents

5.0 Application Process and Eligibility:The applicant will undergo a means test. Upon success, the applicant will be required to pay a small token sum of registration fee of RM2.00 and to fill up some forms at the premises. Following the submissions of the forms, an interview will be conducted to determine the full details of the case with respect to the applicant and necessary actions to be taken thereon. The applicant will also be mandated to sign a statutory declaration confirming if his/her annual income is within the qualifying criteria set by BBG, and have this been certified by a Commissioner of Oaths. Applicants should be cognizant and mindful that provision of false information, deliberately or non-deliberately during the application process is an offense and persecutions under Section 31 may ensue or eventuate upon discovery. Upon conviction, one shall be fined not exceeding RM1, 000 or imprisonment of not more than 6 monthsThere are two main categories an applicant may fall into. Failing which, you can apply to the Director of BBG for a special exemption.i. First category Free Legal AidApplicants whose yearly income does not exceed RM25, 000 (i.e. RM2, 083 per month)ii. Second category Subsidized Legal AidApplicants whose yearly income is more than RM25, 000 but does not exceed RM30, 000 (i.e. RM2,500 per month).iii. Special exemptionApplicants who do not qualify for the first or second category can apply for a special exemption to obtain legal aid with the approval from the ministry (Y.B. Menteri). This application is made through the Director of the BBG.

6.0 Cancellation of CertificateUnder section 19 of the Legal Aid Act 1971 the Director General of Legal Aid or any person appointed under subsection 3(2) may cancel a legal aid certificate. Pursuant to regulation 8 of the Legal Aid and Advice Regulations 1970, a legal aid certificate may be revoked in any of the following circumstances:1. at the request of the person to whom it is issued;2. the applicant has been required to make a contribution and any payment in respect thereof is more than 30 days in arrears;3. if the Director General is satisfied that the proceedings have been disposed of;4. where the Director General is satisfied that the aided person has required the proceeding to be conducted unreasonably so as to incur an unjustifiable expense to the Department;5. demise of the aided person;6. in the event that the aided person has had a receiving order made against him;7. if the income of the aided person exceeds RM30,000.00 per annum upon further determination;8. if as a result of any information the Director General considers the aided person no longer has reasonable grounds of being a party to the proceedings and it is unreasonable for him to continue to receive legal aid;9. if the aided person in furnishing information has knowingly made a false statement or false representation.

Complaints against Lawyers:The quality of services provided by the LAD is monitored via client satisfaction forms handed to clients. Pursuant to accessible statistics, in 2010, the LAD received 31 complaints and in 2011, 27 complaints.Press reports indicated the Advocates and Solicitors Disciplinary Board receives an average of 900 complaints each year, including for committing criminal breach of trust and breaching of solicitors ethics. Between January and May 2011, the board received 538 complaints.In the past five years, 144 lawyers have been disbarred following disciplinary hearings.

Differences between Bar Council Legal Aid Center and Legal Aid BureauBoth government and the Bar Council provide avenues for legal aid in Malaysia. In fact, the recent establishment of National Legal Aid Foundation in 2011 has opened up the conduit to get legal aid even greater. The provision of legal aid by the Government is through its Legal Aid Bureaus located in all states whilst the Bar Council provides legal aid through its Legal Aid Centers in all states in Peninsula 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.

Figure 2: Differences between LAB and BCLAC.Challenges / Shortcomings on Legal Aids in Malaysia1. According to Bar Council Malaysia, the Government of Malaysia merely allocates 0.001% of its annual GDP for legal aid. This is low by a marginal landslide compared to the allocation of other government for legal aid funds. It should warrant our attention that Taiwan and Hong Kong allocate approximately 0.05% of its GDP for legal aid funds. Finland allocates 0.03% of its GDP for legal aid funds whereas England & Wales allocate about 1.2% of their GDP for legal aid fund.2. It is pertinent to be aware of the fact that Legal Aid service providers is that the lawyers undertaking legal aid work are all paid. In fact, Hong Kong pays the legal aid lawyers at market rate whereas all other legal aid service providers pay their lawyers about or 1/3 of the market rate. Whilst the Government funded legal aid lawyers are paid in Malaysia, the Bar Council legal aid lawyers are not paid any remuneration for the services that they provide. In the wake of that, the shortage of legal aid lawyers 3. It is respectfully pointed out that all the mature legal aid service providers do have a program to assist and represent the accused persons in conducting criminal defence. It is pertinent to note that in Malaysia, the Legal Aid Bureau does not in its ordinary course of duties undertake the conduct of criminal defence for the accused persons. They are severely restricted by the requirements of the Legal Aid Act 1971. Most of the criminal cases that fall outside of their limitations to handle are re-directed to BCLAC.

RecommendationAlbeit it is crucial to acknowledge that there are flaws and inadequacies of both BCLAC and LAB, it should also not be sidelined that the BCLAC is constrained by its limited resources contributed by its members, which is the hindrance for it to handle every single aspect of legal aids. Government support is ostensibly lacking in Malaysia. With a close to 1.5% population growth rates in Malaysia, it is imperative that the Government of Malaysia assume proactive action to probe and delve into the dead-pits or flaws of its legal aid structure, according to the recommendation of Bar Council of Malaysia. Amongst the most prominent recommendations that is likely to contend to the current rift of legal aid boils down to increased funding by the government in matters concerning legal aids and increased awareness amongst lawyers to support a social on top of taking pride of being associated with legal aid provision entities.15