A Conversation with Goh Cia Yee (Part 2: The Malaysian Legal System)

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[1]. 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.[2] 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: