The Committee refers to The Star’s report on 28 May 2008 entitled “Legal aid officers to help clear cases”.
Access to free legal aid is a fundamental human right, which is to be provided by the State. In relation to criminal legal aid for example, Article 14(3)(d) of the International Covenant on Civil and Political Rights states that every person accused of a criminal charge shall be entitled “(t)o be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it”.
The provision of legal aid by the Malaysian Government under the Legal Aid Act 1971 is severely limited. In criminal cases for example, the Government’s Legal Aid Bureaus only handle cases in situations where an accused pleads guilty and wishes to make a plea in mitigation; as a result of which, many accused still languish in prison without legal representation.
The Malaysian Bar has established a legal aid scheme whereby representation by advocates and solicitors is available to impecunious persons pursuant to section 42(h) of the Legal Profession Act 1976. Members of the Bar make annual contributions to this scheme through a Legal Aid Fund, and the Bar’s Legal Aid Centres are found across the Peninsular actively assisting the financially poor and marginalised in society on their legal affairs in addition to administering various law awareness and capacity-building programmes. The Centres are also at the forefront of monitoring arrests and detentions, and providing legal representation at the trials of public interest cases (e.g. during the prosecutions of the Reformasi, HINDRAF and BERSIH public assemblies).
Nevertheless, the Bar’s resources are finite and incapable of meeting the ever-increasing demand for free legal aid on a range of matters. The Government must live up to its responsibility imposed by international human rights law to cater for all persons in need of free legal aid.
A first step would be to review and amend the Legal Aid Act 1971 by widening the jurisdiction of the Bureaus. Secondly, there should be a greater openness on the part of the Bureaus to co-operate with and embrace the work of the Bar’s Legal Aid Centres.
The Government’s move to “expand the scope and responsibilities of legal aid officers” should not solely be to clear “backlogged cases”. Legal aid for all must be provided by the Government.
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