1. NATIONAL Legal AID MALAYSIA
Collin Andrew
18 AUGUST 2016

2. Overview National Legal Framework on legal aid
The main Legal Aid Schemes in Malaysia
Achievements & Challenges
Developments

3. Legal Framework on Legal Aid
National Constitution Framework
No specific provision under the Federal Constitution on legal aid. However –
Article 5(3) of the Federal Constitution – right to be legally represented
Article 8(1) – all persons are equal before the law. From this declaration it can be safely assumed that Legal Aid or access to justice is a fundamental human right in Malaysia.

4. Legal Aid Schemes in Malaysia
Four Main Bodies providing legal aid in Malaysia –
Government Legal Aid Department governed under the Legal Aid Act 1971
Malaysian Bar governed under the Legal Profession Act 1976
Court Assigned Counsel Scheme for death penalty cases under the purview of the judiciary
National Legal Aid Foundation (NLAF) – cooperation between the Government and the Malaysian Bar

5. Legal Aid Schemes – prior to 2012
The table below shows the differences between the Bar Council legal aid and the Government’s Legal Aid Department –
Legal Aid Organisation
Government Legal Aid Department
Bar Council Legal Aid Centre
History
Commenced their service in September 1970
Started in a small shack in Bayan Lepas, Penang in 1980
Nature of Organisation
Administered by the Legal Affairs Division under the Prime Minister’s Department and governed under by the Legal Aid Act 1971
Administered by the Malaysian Bar under the Legal Profession Act 1976
Funding
Funds allocated by the Government
Funds allocated by way of members of the Bar yearly contribution to the Legal Aid Fund

6. Legal Aid Schemes - prior to April 2012
Legal Aid Organisation
Government Legal Aid Department
Bar Council Legal Aid Centre
Services Rendered
In relation to criminal matters, deals only with mitigation and cases under the Minor Offences Act 1955 and Child Act 2001
Also deal with other matters i.e. family matters, employment matters, hire purchase, probate & LA, etc.
In relation to criminal matters, deal in all criminal cases at all stages of the criminal process (except for capital punishment cases)
Various other areas of law i.e. family matters, employment matters, advisory works, etc.

7. Legal Aid Schemes - prior to April 2012
Legal Aid Organisation
Government Legal Aid Department
Bar Council Legal Aid Centre
Services Not Rendered
Representing non-citizens i.e. illegal immigrants/migrants/asylum seekers/refugees/stateless person.
Capital punishment cases, criminal trials.
Capital Punishment Cases (there is already an assigned counsel scheme provided by Courts for indigent persons accused of capital punishment cases)
Means Test
Applied for legal representation
For criminal matters, applied at appeal and trial stage. Other matters, means test apply.
No Means Test at arrest, remand, bail and mitigation stage

8. Post April 2012- National Legal Aid Foundation
Legal Aid Organisation
NLAF
What They Do
Deals with only CRIMINAL MATTERS. Advice and representation at Arrest, Remand, Bail and Mitigation. Will represent at all stages of a criminal trial. Also assists in clemency petitions, presumption of death application for MH370 next of kin.
What They Don’t Do
Represent Non Citizens (with the exception of persons below 18 years old), Capital Punishment Cases, Traffic Summons, victims of crime, civil matters
Means Test
No Means Test at arrest, remand, bail and mitigation. Means Test applied for criminal trial representation

9. Court Assigned Counsel Scheme
Has been in existence way back during the pre-World War II era
No specific means test. In criminal cases, where person accused of capital punishment offence, while in civil cases, where the President of the COA or the Chief Justice consider to be in the interest of justice that legal aid should be given

10. Court Assigned Counsel Scheme
Legal Framework
s 255 of the Criminal Procedure Code grants the accused the right to be defended by an advocate.
Rule 66 Rules of Court of Appeal 1994 & rule 96 Rules of the Federal Court 1995 provides as follows -“In an appeal where a party thereto is not legally represented, the Registrar of the Court shall assign a solicitor to represent him in —
(a) every case where the person has been sentenced to death; and
(b) any other case where the President considers it is in the interest of justice that legal aid
should be given”.
3. Federal Court Registrar’s Circular

11. Achievements - BCLACs
Bar Council legal aid (16 centres) – over last 5 years LACs have handled a combined total of 103,538 case files: ,562; ,381; ,822; 2014 – 19,057; ,716.
work carried out comprised of matters pertaining criminal matter (minimal upon coming of NLAF), public interest cases, housing/tenancy issues, labor/employment, family law matters, syariah cases, domestic violence, migrant/refugees issues, immigration issues.

12. Achievements - NLAF Number of clients and scope of coverage (Apr 2012 – Dec 2015)
Arrest
Remand
Mitigation/Bail
Hearing/Appeal
Total
Apr to Dec 2012
2,407
37,661
8,276
1,062
49,406
Jan to Dec 2013
3,583
73,239
12,539
2,328
91,689
Jan to Dec 2014
7,863
121,712
30,273
3,388
163,236
Jan to Dec 2015
7,191
150,948
69,095
4,421
231,655
21,044
383,560
120,183
11,199
535,986

13. Challenges Statutory limitation; and
The legal aid schemes do not extend its services for legal representation to –
victims of crime which include sexual assault/rape victims and victims of human trafficking; and
Child witnesses

14. Challenges
60% of lawyers in peninsular are concentrated in the urban areas and as such, legal representation in rural areas is a challenge.
lack of representation for foreigners in Immigration Courts

15. Development ( )
As of Jan 2015, NLAF service extended to all below 18 years of age, citizen and non-citizen alike
Qualitative improvements –
more stringent entry – intensive training, assessment
More interactive videos have been in place for the training
Regular audits are also in place now to maintain quality of representation given
Complaints and investigation system
Experience requirements

16. Development ( )
At the pre-trial stage, about 75% are being represented now since the coming of NLAF from a situation where more than 90% were unrepresented prior to 2012.
1/8/ Newly minted Law Minister, Datuk Azalina is looking into setting up a taskforce to streamline the legal aid system in Malaysia
Different rates – new legal aid and advice (amendment) regulations 2016 provide a rate for payment to lawyers as compared with the NLAF payment rates, overlap of services provided.