Updated: Jun 23, 2020
Goh Cia Yee is a Legal Associate at Messrs Sivananthan, Advocates and Solicitors a boutique criminal litigation firm in Petaling Jaya. A graduate of the University of Nottingham, he is a former Human Rights and Activism Officer of ASASI, KPUM’s human rights arm. Cia Yee writes regularly about current issues in his blog, which you can find here.
In this second article, Cia Yee reflects on the current state of legal aid in Malaysia, as well as how the Malaysian criminal justice system is in dire need of reform. To read part 1 of this series, click here.
1. What sort of criminal legal aid schemes are available in Malaysia, if any?
There are 3 legal aid providers in Malaysia: the federal government’s Legal Aid Department (LAD), the Bar Council’s Legal Aid Centre (LAC), and the National Legal Aid Foundation/Yayasan Bantuan Guaman Kebangsaan (NLAF/YBGK).
LAD and LAC require applicants that meet their criteria to undergo a means test (annual income) and merits test (whether your case should be taken up or not) while NLAF only requires a means test. You can read more about the differences between the 3 providers HERE.
LAD is limited to offences under the Child Act or Minor Offences Act, requiring those who pass the minimum income threshold to pay a certain rate. The LAD also provides mitigation services for cases in which the accused has pleaded guilty.
LAC, on the other hand, fully funds the cost of trial with the exception of filing costs. Unlike the other legal aid providers, non-Malaysians may qualify for legal aid under the LAC (note that non-Malaysians below 18 would also qualify for NLAF). The LAC is under the purview of the Bar Council and only provides services to individuals that have claimed trial. Despite this, the LAC still organises a number of programmes involving pupils such as dock briefs (mitigation and bail applications at magistrate courts in Malaysia) and prison visits. From my understanding, such dock brief programmes only require a means test and not a merits test.
The NLAF was a game-changer when it was first established and is jointly coordinated by the Bar Council and the Government. It provides the closest framework to what can be considered as a comprehensive nationwide legal aid scheme for criminal cases in the country, providing legal representation for all criminal cases with the exception of death penalty cases. A court-appointed lawyer whose fees will be borne by the court handles cases with the death penalty instead.
2. Is access to these legal aid schemes generally satisfactory, and what can be done to make them more accessible to the layperson?
While the provision of legal aid seems good on paper, there are some clear problems with its accessibility as well as its implementation. I personally doubt that many Malaysians understand the difference between each legal aid provider, or whether they qualify for aid. A Google search for NLAF/YBGK will not turn up any websites with verified information on how to apply for it – instead, most information about it comes from police officers, court staff, or other prisoners, all of whom offer varying degrees of information.
The lack of public knowledge about the guidelines around these aid schemes and how they ought to be implemented has a detrimental effect. For example, one supposed guideline of the NLAF stipulates for the police to provide details of an arrested suspect by facsimile to the NLAF as soon as an arrest is made, who will then dispatch a duty solicitor to the relevant police station or detention centre to provide legal representation. From my personal experience, I can say quite confidently that this guideline has clearly not been complied with on a daily basis and the lack of public access to these guidelines may have contributed to the police escaping accountability for their failure to comply. One contributing factor may also be the lack of NLAF-affiliated criminal lawyers that are willing to make the trip to police stations to give advice.
There have also been complaints from NLAF-registered lawyers regarding delays in payment. The Malaysian Bar attributed this to administrative problems rather than funding but also admitted as far back as 2015/16 that there was a significant decline in NLAF cases due to this late payment problem. This issue is still being discussed today and was highlighted in the recent Malaysian Bar Annual Report for the year 2019-2020. Another issue that hasn’t been discussed at length is also the amount of payment to NLAF lawyers. While the Malaysian Bar maintained in 2017 that the RM 20 million ringgit allocation in 2013 by the Government was still enough to support the YBGK programme, one can’t help but wonder if that is because lawyers are simply not being paid enough for their work.
I am highlighting the problems surrounding payment of NLAF lawyers because without adequate and consistent payment, criminal lawyers cannot guarantee a steady income through the legal aid programme. Legal aid is not pro bono and a failure to pay lawyers adequately will only serve to cut down the number of lawyers that are willing to take up NLAF cases. What’s worse is there are criminal lawyers who resort to touting because it provides more of a steady income than the NLAF.
NLAF-accredited lawyers currently form 15% of all practising lawyers in Peninsular Malaysia. There is a risk that this percentage will drop significantly going forward if the issues surrounding payment continues to be unresolved and if this happens the accessibility of legal aid will certainly be affected.
On the point of whether the respective bodies are working to make legal aid more accessible, the recent Malaysian Bar annual report notes that they have been approached with a proposal by LAD to combine LAD and NLAF under one roof but the Malaysian Bar expressed some concerns over this and has since taken the stand to maintain the status quo. Personally, I am of the opinion that if these legal aid services were combined under one roof, it would make legal aid more accessible and less confusing for members of the public.
3. What aspects of the criminal justice system do you think are in serious need of reform, and why?
Some aspects of the criminal justice system that needs immediate reform can be categorised into the following:
While many complain about the state of prisons or detention centres and lament about the fact that medicine and basic necessities are not provided at these places, few raise the issue of funding.
From my conversations with a former police officer, I was informed that there are police stations that do not even have enough money to buy plain paper. Just one visit to a local police station and seeing the decrepit nature of some of these offices and you would have a guess that this statement is probably true.
I was even told that there are instances where prison officers have to use their own cash to rent a truck to transport prisoners to court or buy medicine for prisoners. The non-provision of medicine or basic necessities such as mattresses to prisoners could be attributable to a lack of funding in certain prisons. Without the necessary funds, it would be difficult to ensure the appropriate supply of medical items and other basic equipment. The amount of people that are sent to prisons or detention centres on a weekly basis is a large number, and there is a legitimate concern that there may not be enough funds to support humane conditions of living for each prisoner or detainee.
Adequate funding could encourage the implementation of rehabilitation programmes for prisoners or the provision of other facilities such as a better library and so on. It should be borne in mind that most prisoners in prisons such as Sungai Buloh Prison are in remand and are yet to be convicted of any crime.
The condition of detention centres are sometimes said to be even worse than that of prison, and this is extremely disheartening as a prisoner that is detained without trial should not be subject to such horrid living conditions. It’s easy to blame the officers working at these places but without addressing the funding problem, the issue will not be resolved on its own.
Funding also needs to be poured into research. There needs to be more transparent studies about the criminal justice system in Malaysia. Without the appropriate research and data, it would be difficult to detect the glaring problems in our system and recommend viable solutions to the issues facing the criminal justice system. Research could potentially be done on racial profiling by police officers in Malaysia, the rate of recidivism in the country, the effect of rehabilitation programmes, the socioeconomic background of detainees and prisoners, living conditions of prisons and detention centres, and so on. All this data and information could assist policymakers in making future decisions, and would be fundamental tools in advocating for reform.
Detention without trial
Detention without trial goes against the very foundation of the presumption of innocence and can be prone to abuse. While checks and balances do exist, the arbitrariness of some of these rules is quite apparent and many of these checks and balances have become nothing but a mere formality. In my opinion, the law surrounding habeas corpus applications (which focus solely on the procedural compliance with laws that enable detention without trial) has encouraged a situation where the focus is no longer about whether or not the detention without trial is justified, but rather on the mistakes made in a game of chess between the state and the detainee.
I personally advocate for the abolishment of detention without trial as there are other strict measures that can be taken instead to ensure compliance with the law, such as the restriction of a person’s movement or the electronic monitoring of an individual. Detention without trial is not a tool to be taken lightly and the lackadaisical attitude of police officers and ministers when it comes to its use signals for a desperate need to reform this particular aspect of the criminal justice system.
Abuse of power/Treatment of prisoners or detainees
Having been involved in criminal litigation for nearly 2 years, I can safely say that the tales you have heard about the cruelty of some police officers are most likely true.
My personal experiences can attest to this. I recall one hot morning during a prison visit, as I was walking across the yard towards the designated meeting place, I saw firsthand prison officers yelling abuse at half-naked prisoners as they squat in one line under the burning glare of the sun. I have seen before my eyes a grown man grovelling before a police officer apologising for something he had no involvement in. I have heard tales from our clients about the horrendous treatment in prison and the beatings that they have endured. I’ve met people, not charged with any capital offence, who later wounded up dead and alone in a prison cell, thousands of miles away from their home. I’ve stared into the eyes of many police officers that have blatantly lied before the court without breaking a sweat.
Unfortunately, there are also many instances where the rights of an arrested person as stated in the Criminal Procedure Code are not respected and these rights are often treated as if they are inconsequential. The lack of public knowledge about such rights has also contributed to their exploitation.
Whether you believe it or not, people die in lockups or detention centres and sometimes the people that are responsible for those deaths get to walk free. The previously-mooted Independent Police Complaints of Misconduct Commission (IPCMC) is a much-needed step forward, but with the sudden change of Government, its future certainly looks bleak. Regardless, I hold out hope that we can continue previous conversations regarding the IPCMC despite this setback.
There are many legal principles or laws that in my personal opinion stands in the way of a fair criminal justice system. Some of these are outdated and based in very traditional thinking that is not reflective of our modern society. Dock identification, for example, is a very unreliable and inaccurate form of positive identification. There have been countless studies proving this, and yet it remains a formality that is adhered to without much thought in our criminal courts on a daily basis.
The blind application of certain statutory presumptions, which require the accused to rebut on a balance of probabilities, is one example of a legal principle that I believe should be revised. The unwillingness of the Malaysian judiciary to declare some of these presumptions as unconstitutional is in my opinion proof that our laws have yet to progress to a point where I would deem it to be satisfactory. The United Kingdom has already chartered the way for this with case law deciding that statutory presumptions that are deemed to have contravened the European Convention on Human Rights can be declared unlawful by the court, or be read in such a way as to be in line with the accused’s right to a fair trial.
The wholesale prohibition of bail for certain offences is also a problem that needs to be addressed. While there has been a recent High Court decision stating that the judge has the inherent right to consider bail even if a statute were to say otherwise, there needs to be legislative intervention or at least a binding decision from the superior courts. This is because while the former Attorney-General expressed his approval of the High Court decision, the Deputy Public Prosecutors working for him have taken a different approach before the High Court. This inconsistency is damaging and there needs to be a clear reform.
I also believe that the criminal justice system can benefit from a provision that has a similar effect to that of the United Kingdom’s Section 78 of the Police and Criminal Evidence Act 1984, which allows the court to exclude evidence that will have an adverse effect on the fairness of the trial. This could ensure in certain circumstances the exclusion of evidence that is improperly obtained. The potential legal implications stemming from the introduction of a simple provision such as section 78 could be massively beneficial, encouraging police officers to follow proper legal procedure and respect the rights of the accused and therefore, help to curb instances of power abuse by police officers.
When I mention sentencing, I am more focused on the approach adopted by the Malaysian courts to this practice (and not so much the issue of the death sentence, which I have already covered previously).
Consider the viral case of a single mother who pleaded guilty to breaching the MCO and was slapped with a RM 1,000 fine and 30 days imprisonment. Contrast this with the sentence of a RM 800 fine that was given to the daughter of a politician that had pleaded guilty to the similar offence.  Both of them had what were considered to be minor breaches of the MCO, but the single mother was handed a far greater sentence (although the 30-day jail sentence was eventually reduced to 8 days by the High Court) and even had to borrow money in order to pay the fine.
How can such discrepancies exist in sentencing? The answer is because unlike the United Kingdom, we do not have sentencing guidelines. Most sentencing by Magistrates tends to be based solely on (i) the recommendation by the DPP and (ii) the mitigation by the defence, and is a result of a completely non-transparent introspection exercise by the magistrate on what they feel is a justified sentence. This is a big problem because different magistrates have different expectations of what an appropriate sentence is, and the sentence range for an offence can sometimes be quite wide.
Rather than rely on arbitrary ‘sentencing trends’ compiled by defence lawyers that tend to be cherry-picked for the benefit of clients, a proper sentencing guideline for different offences prepared by a sentencing council would help to standardise sentencing across the board. This is something that is both easily achievable and has already been done by other countries.
Another point to note on sentencing is that Deputy Public Prosecutors should be more thoughtful about the specific circumstances of each victim and not just quote the infamous line: “Saya memohon hukuman yang setimpalnya.” Deputy Public Prosecutors should be more mindful about making such pleadings to the Magistrate without giving further thought about what might actually be the appropriate sentence. Perhaps one way to alleviate this problem is to revise the workload of the Deputy Public Prosecutors at the lower courts so that they do not get desensitised and burnt out by the sheer amount of cases that require sentencing per day.
Another potential solution is to encourage the preparation of Pre-Sentence Reports, which detail the background of the Accused and the appropriate sentence to be meted out. The purpose of sentencing in general also needs to be thought out, and we need to ask whether retribution is the only purpose for our criminal justice system or are there other purposes that can help to shape the narrative such as rehabilitation or restoration.
4. What are your closing thoughts on criminal justice in Malaysia?
I’ve only scratched the surface when it comes to the myriad of problems that exist within our criminal justice system. Unfortunately, I can’t help but feel that the discourse on how we can improve upon these areas is simply non-existent. Knowledge about the criminal justice system and the unfair parts of its process remains largely inaccessible to the public and such knowledge remains exclusive only to a relatively small sample of practising criminal lawyers, who have opted to focus on work without much intention to bring about the necessary changes.
Comparing our criminal justice system to that of the United Kingdom reveals a stark difference in maturity and fairness. While countries like the United Kingdom have their own flaws, it is embarrassing to note the lack of progress that our country has had in the treatment of suspected criminals and the laws that are used to determine their guilt. It would not be too far-fetched to suggest that we have perhaps regressed instead.
It is often said that the way we respond to crime is a reflection of our society. Unfortunately, that reflection in this scenario isn’t a pretty picture, and it will likely remain so for the foreseeable future unless we, as criminal lawyers, start highlighting these issues and relating their importance to the public. It is our duty after all to uphold the cause of justice without fear or favour.
 ‘Malaysian Bar: Delayed payment for legal aid scheme not due to funding issues’. (The Malay Mail Online, 18 March 2017).<https://www.malaymail.com/news/malaysia/2017/03/18/malaysian-bar-delayed-payment-for-legal-aid-scheme-not-due-to-funding-issue/1337937>. Accessed 31 May 2020.
 ‘Malaysian Bar 2019/20 Annual Report’. <https://drive.google.com/file/d/1I62SXvEoPb_ydHUhst_yfflj0fn9j8fp/view?usp=sharing.>
 'Single mother jailed for MCO violation questions fine treatment of Zahid’s daughter, son-in-law.' (The Malay Mail, 6 May 2020).<https://www.malaymail.com/news/malaysia/2020/05/06/single-mother-jailed-for-mco-violation-questions-fine-treatment-of-zahids-d/1863545>