COM 02/2015
National Legal Aid Foundation (NLAF)/ Yayasan Bantuan Guaman Kebangsaan (YBGK)
Chong Yin Xin, Samantha, Advocate and Solicitor of the High Court of Malaya
The Malaysian Bar is always mindful that the right to legal representation is one of the fundamental rights of a civil society. The Bar Council Legal Aid Centre (BCLAC) was launched in 1983 to provide legal aid and is fully financed by members of the Bar who will be levied RM100 per annum.
However, there is a need for a comprehensive and sustainable legal aid programme for those ensnared in the criminal justice system. In 2010, the Bar council had proposed to the Government of Malaysia to set up a state funded legal aid scheme. The Prime Minister was shocked that in 2008, 80% of 108,000 accused persons facing trial in the magistrate courts were unrepresented. As a result, the National Legal Aid Foundation (NLAF), a state funded legal aid scheme was made possible by Prime Minister Dato’ Sri Najib Tun Abdul Razak. It was incorporated as a charity company on 25 January 2011 and commenced operation on 2 April 2012 with an initial budget of RM 5 millions. The objective of the NLAF is to provide legal representation and consultation for all Malaysian at every stage of a criminal case, i.e. arrest, remand, bail application, trial and appeal. The NLAF provides legal aid for all criminal cases excluding offences carrying death penalty.
The NLAF programme is administered through the network of Bar Council Legal Aid Centres that exist in each state. Lawyers serving under the NLAF must be accredited by the NLAF and will be paid a nominal flat rate for rendering their services.
From April-August 2014, NLAF had handled a tremendous number of 40,839 cases with an average of 8304 cases per month.
Arrest
NLAF guidelines stipulate that as soon as an arrest has been made by the enforcement agency, and before the suspect is questioned, the police officer must inform the suspect’s family or friend of the arrest, and must also provide details of the suspect and the arrest to the NLAF by facsimile, who will then despatch a duty solicitor to the relevant police station or detention centre to provide legal representation. An arrest is no longer done in a secret manner. This protocol is seen as a government’s effort to increase transparency and accountability of the enforcement agencies as well as to prevent death in custody.
Remand (Detention, Pending Investigation)
Under Malaysian law, if an investigation cannot be completed within 24 hours, the arrested person needs to be produced before a magistrate within 24 hours to apply for further detention. Such an order granted by the Magistrate is known as the “remand order.
The NLAF will send lawyers to respective remand court to provide legal representation. It is the duty of the lawyer to make sure the magistrate has the full facts of the case, legal procedures are strictly followed and chain remand/ roadshow should be rejected.1
Trial and Appeal
Legal aid is given to all Malaysian in arrest, remand and bail application stages. However, the accused person must pass the mean test to be eligible for legal representation at the trial and appeal stage.
An arrested person whom remand order is going to expired is taken to another magistrate court outside the jurisdiction to obtain further remand on the basis of investigation on some other purported offence in that jurisdiction.
Means test to receive representation at the hearing stage:
1. Earn less than RM 25,000 per annum – No charge
2. Earn more than RM 25,000 but below RM 36,000 per annum (will be charged nominal fees to be determined by the NLAF)
Conclusion
NLAF being one of the most successful government-private partnerships has become a major milestone for the Malaysian justice system. The Government has taken bold initiative in setting up NLAF which has given true meaning to constitutionally-enshrined rights such as access to justice and equality before the law. As to the way forward, the Bar Council will continue to lobby the Government to expand the scope of the NLAF to cover other cases in addition to criminal cases and to extend NLAF services to non-Malaysians.