15 Legal Aid

Question 1

Article 7 of the Universal Declaration of Human
Rights

Answer 1

All are equal before the law and are entitled without any discrimination to equal protection of the
law

Question 2

Article 8(1) of the Federal Constitution

Answer 2

• All persons are equal before the law and entitled to the equal protection of the law
• There must be unrestricted access to justice and to the courts

Question 3

Current problems

Answer 3

• Lack of legal knowledge and high costs disadvantage the less privileged in society.
• Engaging a legal practitioner can be prohibitively expensive.
• Costs include fees payable to counsel, court fees, and the opposing party’s costs.

Question 4

Main providers of legal aid in Malaysia

Answer 4

• Legal Aid Department (Jabatan Bantuan Guaman) under the PM’s Department
• Bar Council Legal Aid Programme – legal aid centres
• National Legal Aid Foundation (Yayasan Bantuan Guaman Kebangsaan or YBGK)

Question 5

Legal Aid Department

Answer 5

• A gov agency under the Legal Affairs Division of the PM’s Department.
• Provides legal aid services to eligible individuals based on the Legal Aid Act 1971.
• Gov aims to offer affordable legal services as an alternative to private lawyers.

Question 6

Objectives of LAD (2)

Answer 6

• Provide legal assistance, advice, and mediation services to those who cannot afford them.
• Promote legal awareness to the public efficiently, accurately, and effectively.

Question 7

Functions of LAD (4)

Answer 7

• To give legal advice on all legal matters
• To represent in criminal, civil and Syariah proceedings
• To provide mediation service
• To promote legal companion services

Question 8

Eligibility for LAD

Answer 8

• The eligibility criteria for legal aid and representation in legal proceedings are contained in Legal Aid Act 1971
• The Act sets out 2 tests; Means test and Merits test

Question 9

LAD Means test

Answer 9

• Conducted to gauge the financial status of the applicant
• Not the sole determinant of an applicant’s eligibility for legal aid

Question 10

3 types of eligibility for LAD (Means test)

Answer 10

• Applicants whose yearly financial resources do not exceed RM50,000
• Applicants whose yearly financial resources are between RM50,001 and RM70,000
• Applicants whose yearly financial resources exceed RM70,000 (authorised by the Minister)

Except for a person under (a), each person under (b) or (c) will be imposed an amount of contribution.

Question 11

Resources and liabilities (LAD Means test)

Answer 11

• A person’s means will be determined by taking into account his/her financial resources and liabilities
• Financial resources = wages, allowance, pensions, gratuity and other money received in current year
• Liabilities = Contribution for Employee Provident Fund (EPF), contribution for Social Security Organisation (SOCSO), income tax, first housing loan, household expenses, zakat on income and compulsory contribution to Tabung Angkatan Tentera

Question 12

LAD Merits test

Answer 12

• Requires the applicant to demonstrate to the Director General that they have valid reasons for taking, defending, continuing, or being involved in the legal proceedings.
• In other words, the applicant must show they are likely to succeed in the case.

Question 13

Procedure for Legal Aid under LAD

Answer 13

1. Applicant registers
2. Applicant fills out the means test and statutory declaration forms
3. Means test is conducted
4. Interview is held to identify issues, remedies, and needs
5. Application is processed (within 3 days)
6. If approved, legal aid terms are offered
7. Applicant pays a registration fee of RM10.00 and any applicable contribution if they accept the terms
8. Legal aid is granted
9. Brief is opened and registered
10. Brief is filed into court

Question 14

Objectives of Bar Council Legal Aid Programme (3)

Answer 14

• Supplement Government-funded legal aid scheme
• Provide assistance to the less privileged
• Provide some clinical legal education to chambering students

Question 15

Legal Aid Centres (5)

Answer 15

• Established in Kuala Lumpur and each state in Peninsular Malaysia.
• Each centre is run by legal practitioners who volunteer their services free of charge.
• Legal practitioners are assisted by full-time administrative staff and chambering students.
• Fully financed by annual contributions from members of the Malaysian Bar.
• Areas covered include criminal law, family law, labour/employment law, Syariah law, public interest cases

Question 16

Eligibility for Bar Council Legal Aid Programme

Answer 16

• Means Test will be conducted
• For example , the Means Test for the Legal Aid Centre Selangor is monthly income (after deduction of monthly expenses) must not exceed RM500 for a single person and RM900 for a married couple
• Monthly expenses include rental, utility bills, medical bills, personal expenses, monies given to support parents family, etc.
• Applicant must not own property or having savings exceeding:
  House – RM45,000
  Car – RM10,000
  Motorcycle – RM4,500
  Savings – RM5,000

Question 17

National Legal Aid Foundation /NLAF (Yayasan Bantuan Guaman Kebangsaan / YBGK)

Answer 17

• In November 2009, 84,376 out of 108,528 accused persons in criminal trials were unrepresented.
• The main reason for this was the lack of legal assistance from the two main providers of legal aid in Malaysia: the LAD and the Bar Council Legal Aid Programme.
• To address this gap, NLAF was established on 25th January 2011 and officially began operations on 2nd April 2012.

Question 18

Objectives of NLAF (5)

Answer 18

• Fund legal aid and legal advice for individuals requiring assistance in criminal proceedings.
• Provide services to hire private sector lawyers to represent those needing legal representation in criminal matters.
• Encourage, conduct, fund, and supervise research on legal aid.
• Initiate educational programs to raise public awareness about their rights and obligations under the law.
• Provide information to the public on the availability of legal assistance for criminal cases by NLAF lawyers.

Question 19

Types of services provided by NLAF

Answer 19

• Free legal assistance in criminal matters, including Syariah criminal matters, at the stages of arrest, remand, mitigation, and bail applications.
• For trial representation, a Means Test is required, where the individual’s monthly income must be less than 3K or 36K annually.
• Cases involving offences that carry the death penalty are not covered.

Question 20

NLAF Means test

Answer 20

• To receive representation at the hearing stage, the accused person must satisfy the means test
• If the accused’s annual income does not exceed RM25K, they will not be charged for legal assistance.
• If the annual income is more than RM25K but does not exceed RM36K, nominee fees will be charged, with the amount determined by NLAF.
• Only individuals whose income does not exceed RM36K annually are eligible to receive legal aid.

Question 21

NLAF services coverage

Answer 21

• Operates throughout Malaysia.
• In Sabah, NLAF operates in Kota Kinabalu, Papar, Penampang, and Tuaran.
• In Sarawak, Kuching, Miri, Sibu, and Bintulu.
• In Peninsular Malaysia, NLAF operates through Legal Aid Centres under the Malaysian Bar.
• In Sabah, Sarawak, and the Federal Territory of Labuan, NLAF operates thorugh LAD and collaborates with the Sabah Law Association and the Advocates Association of Sarawak.