Law Lecturers Can Now Represent Clients in Courts

New Sunday Times, 19 September 2010

LAW lecturers will soon be able to dispense legal advice and go to court for legal aid work. This will facilitate the running of the Legal Aid Foundation to be set up in December.

Malaysian Bar Council president Ragunath Kesavan said with the move, lecturers who had been called to the Bar would be gazetted as legal aid lawyers.

“This will expand the pool of volunteers. It will also encourage law students to be involved in legal aid from when they are in law school.”

The government has allocated RM5 million for the foundation.

Under this move, lawyers providing legal aid will be paid a minimal fee. Now, lawyers who do legal aid work are not paid.

Ragunath said the foundation would be set up with broad objectives and run by the several stakeholders, including the Attorney-General’s Chambers.

“Attorney-General Tan Sri Abdul Gani Patail is heading the working committee to finalise details.

“Members of the committee would include those from the A-G’s Chambers, members of the Bar Council and representatives of the judiciary, who will be sitting down together to set the principles of jurisdiction and structure in terms of fees payable and other matters.

“This means the foundation will be free to source for funds from the private sector.

“We could also look at the Singapore system, where monies from a court judgment in running down matters are paid to a public trustee for disbursement to plaintiffs.

“What we are proposing is a similar structure with the monies paid to the foundation, which would then administer the monies and take a one per cent cut which would go towards the Legal Aid Fund.”

Most of the money in the fund, said Ragunath, would go towards paying the lawyers.

“With this foundation, lawyers can be paid a minimal fee. It would also encourage young lawyers to take up criminal law, an area which sorely lacks lawyers now.

“We have only 200 to 300 active practitioners in this area when we need at least 2,000 to 3,000.

“When there’s an element of a fee, there would also be greater interest by lawyers to participate in legal aid work. This will also enhance the quality of work provided under legal aid.”

He said areas with the most need for legal counsel would be police stations where the accused were remanded and courts where they were charged. Rural areas as well as Sabah and Sarawak will also be given priority.

The Bar Council had proposed the setting up of a National Legal Aid Foundation last year and presented a memorandum to Minister in the Prime Minister’s Department Datuk Seri Mohamed Nazri Abdul Aziz on Feb 16. They resubmitted it this January to Prime Minister Datuk Seri Najib Razak.

Ragunath said Najib was shocked by the fact that about 80 per cent of those charged in the magistrate’s courts for criminal cases were unrepresented.

“This is where a person’s liberty is at stake. This is a serious indictment that the criminal justice system is not working.”

The problem is severe as the Bar Council’s initial survey also indicates that up to 90 per cent of people remanded throughout the country are unrepresented.

“What this means is that there could be a miscarriage of justice. Innocent people may be under pressure to plead guilty,” said Ragunath.

“There is no proper advice on what their rights are. A first-class judiciary and a fantastic constitution must include meaningful access to justice.”

The rule of law, said Ragunath, and Article 5 (3) of the Federal Constitution (where a person is arrested, he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice) would be meaningless without this access to justice.

Section 28A (4) of the Criminal Procedure Code, he added, also stated that remanded persons had access to counsel.

“It is a right provided for under the CPC and the Constitution. But if a person can’t afford a lawyer, that law has no meaning. What is the use of all this then?” asked Ragunath.

“That is why setting up the foundation is important. At the moment, we are in the process of negotiating and sorting out its operational issues. We want it launched as soon as possible.”

The schemes available now

THERE are two legal aid schemes running concurrently, namely the Bar Council Legal Aid Scheme and the government-funded Legal Aid Bureau, now known as the Legal Aid Department governed by the Legal Aid Act 1971 and administered by the Prime Minister’s Department.

Malaysian Bar Council president Ragunath Kesavan said the Bar Council Legal Aid Scheme, launched in 1983, was only supposed to be a stopgap measure.

“The Bar Council’s 14 legal aid centres have reached their saturation point.”

Last year alone, he said, the centres represented 40,000 cases throughout the country.

They are funded solely by members of the Bar Council, who contribute RM100 yearly, adding up to RM1.2 million.

“We are stretched. That is the maximum the legal aid centres can do because it is pro bono. Even if you take an average of one hour per client, this makes up to about 40,000 hours a year, which in quantitative terms would come up to about RM50 million,” said Ragunath.

The legal aid centres take up both criminal and civil cases.

The Legal Aid Department handles civil cases but is only empowered to handle criminal proceedings where the accused pleads guilty and wishes to make a plea in mitigation. This is because prosecution is always made in the name of the government.

Where there is hardship, or it is in the interests of justice to do so, the minister may authorise the director-general of the bureau to provide legal aid.

These existing legal aid schemes will continue to run even with the establishment of the Legal Aid Foundation.

One response to “Law Lecturers Can Now Represent Clients in Courts

  1. Ragunath must draw the disctinction between justice and the availability of lawyers. Lawyers must as part of their “noblesse obligee” each provide a certain percentage of their professional services to pro bono work (for good and for free).

    The absence of this quality in the profession and the absence of legal practitioners available out of good conscience to defend unrepresented especially poor litigants and defendants is an indictment on the legal profession itself.

    There is no need to pursue changes to the constitution and attacks on government by this arm of the courts (legal practitioners as officers of the courts) when their own conduct and their lack of compassion or nobility by Ragunath’s own statistics is found wanting.

    Each court has to have a duty lawyer from a firm each day of the week. In other words lawyers from the Bar Malaysia should nominate, however junior, a person with some capacity to provide one day in court out of their paying duties (and compensate them at a minimum rate) as a court lawyer where a magistrate can then direct the defendant to see the court lawyer and for the otherwise unrepresented defendant to appear with him or her but not without them.

    Magistrates and judges are duty bound in fairness not to hear a matter of any grevious nature where the defendant is unrepresented. A failure to do so is a miscarriagee of justice. It is unprecedented in any country in the commonwealth to have so many people unrepresented.

    In India with a fifth of the world’s population they will not allow this to happen save in exceptional circumstances. Even then there is procedure to correct the failure.

    The failures of the Malaysian bar are perhaps only not recognised by its membership.

    Gopal Raj Kumar

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