national access to justice and pro bono …...christopher leong 30th president/immediate past...

Christopher Leong 30th President/Immediate Past President

Malaysian Bar

National Access to Justice And Pro Bono Conference

Sydney 2015

NO FEAR.NO FAVOUR

Valuing Justice : how much

justice can we afford?

Access to Justice - Legal Aid

State Responsibility or Lawyer’s Duty?

Valuing justice – Monetary Costs v Principles of Legal Profession?

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Valuing Justice : how much

justice can we afford?

800th Anniversary of Magna Carta “39. No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land. 40. To no one will we sell, to no one will we refuse or delay, right or justice.” 3

Access to Justice : Responsibility or

Duty? United Nations Basic Principles on the Role of Lawyers (1990) : Article 3 “Access to lawyers and legal services” states:- “Governments shall ensure the provision of sufficient funding and other resources for legal services to the poor and…other disadvantaged persons. Professional associations of lawyers shall cooperate in the organisation and provision of services, facilities and other resources.”

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Duty?

United Nations Basic Principles on the Role of Lawyers (199) : Article 4 “Access to lawyers and legal services” states:-

“Government and professional associations of lawyers shall promote…Special attention should be given to assisting the poor and other disadvantaged persons so as to enable them to assert their rights and where necessary call upon the assistance of lawyers.”

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The Honourable Profession

As lawyers, one of our foremost duties

is to uphold the cause of justice.

To abrogate that duty devalues and corrupts the principles & qualities

that lawyers are called to honour and the respect from society

that lawyers seek to command.

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Duty? The Universal Declaration on The Independence of Justice (“the Montreal Declaration ”) 1983 states:- “3.27 The functions of a Bar Association in ensuring the independence of the legal profession shall be inter alia:- e) to promote the free and equal access of the public to the system of justice, including the provision of legal aid: and advice; f) to promote the right of everyone to a fair and public hearing before a competent, independent and impartial tribunal, and in accordance with proper procedures in all matters;… ”

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Malaysian Bar : Access to Justice &

Duty

The Malaysian Bar has long tradition of defending the rule of law,

the independence of the judiciary and the legal profession, the Federal

Constitution, fundamental liberties, providing legal aid for the poor and

promoting law reform

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Objects of Malaysian Bar: Public Role; Access to

Justice

(1) The purpose of the Malaysian Bar shall be :-

(a)to uphold the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour; …

(g) to protect and assist the public in all matters

touching ancillary or incidental to the law; (h) to make provision for or assist in the promotion

of a scheme whereby impecunious persons may be represented by advocates and solicitors;…

LEGAL PROFESSION ACT 1976 s42

Justice: Through Law

The Malaysian

Bar Legal Aid

Part I: Valuing Justice : Bar Funded & Administered Legal Aid

How Legal Aid Began

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1965: 19th AGM, resolution to implement free legal aid

scheme for persons detained under the Internal Security

Act.

1978 – 1980: Electronic industry in Penang attracted influx

of workers from rural areas. No worker’s union. Industrial

relations problems. Social workers appealed to Penang

lawyers for legal aid

1980 – 1982: A group of lawyers & paralegals formed the

Penang Legal Advisory Centre housed in a fishing shack &

van

1982: Bar Council set up 1st national legal aid office in small

room in Industrial Court building with RM34,000 (USD10k)

grant from Asia Foundation

Malaysian Bar : Legal Aid Resolutions

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1983: Malaysian Bar AGM resolution - Mandatory for all

pupils in chambers to attend at a Legal Aid Centre for at

least 14 days during his/her pupillage

2007: Malaysian Bar AGM resolution requiring every law

firm to take up one legal aid case per year for each of

their lawyers

1983: Malaysian Bar AGM resolution - Mandatory annual

legal aid levy of RM100 per practicing lawyer

1995: Malaysian Bar AGM resolution requiring every

lawyer to take up one legal aid case per year

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1983 Annual Budget :

RM100 x 1592 members

= RM159,200 (USD45,000)

2015 Annual Budget :

RM100 x 16,700 members

= RM1.67 million (USD470,422)

16 BC LACs established, at least one

in every state in Peninsula Malaysia

Two of which are located at:

1.Taylor’s University - 2011

2.National University of Malaysia - 2013

Cases Handled (2007 – 2013): 161,076

Costs : Bar Council Legal Aid Centres

Our Penang

Legal Aid

Centre

Mobile Van

Cases handled by Bar Council Legal Aid Centre

2007:

18,894

2008:

26,527

2009:

27,318

2010:

21,572

2011:

24,562

2012:

21, 381

No of cases handled:

14

2013:

20,822

• Criminal offences

• Housing/Tenancy issues

• Labour/Employment

• Public interest cases – urgent arrest team

• Immigration issues (passport, identity

cards)

• Family law matters

• Syariah cases

• Domestic violence

• Migrant/refugees issues

Justice: Through Law National Legal Aid Foundation (NLAF)

BC proposed to the Government of Malaysia to set up NLAF

PART II: State-Sponsored Legal Aid

2009

Launched by Prime Minister on 25 April 2011 2011

Commenced operations 2 April 2012. 2012

Out of 108,000 criminal cases heard in Magistrate Courts in Malaysia, 80% of the defendants were unrepresented

2008



YBGK is public company limited by guarantee

Board of Directors (10):

Attorney General (Chairman)

Chairman of the Bar Council (Vice Chairman)

Secretary General of the Treasury

Director General of Legal Affairs Division

Director General of Social Welfare Department

Director General of Legal Aid Department

President of the Sabah Law Association

President of the Advocates Association of Sarawak

President of Syariah Lawyers Association Malaysia

A Dean of a Faculty of Law nominated by the Patron

(Minister for Law)

Justice: Through Law PART II: Services Provided by NLAF

Free legal aid and advice for all types of criminal offences, excluding death penalty cases. No civil cases.

Arrest The police or other enforcement agencies will inform YBGK by fax to represent the arrested person subject to section 28A of Criminal Procedure Code or the arrested person employs his/her own lawyer. Not subject to means test - > RM36,000 per annum (USD9,549)

Remand YBGK will represent the arrested person during the remand application before the Magistrate. Not subject to means test.

Charged/Bail/Mitigation YBGK will represent the accused during charged and when applying for bail/mitigation. Not subject to means test.

Hearing/Trial/Appeal YBGK will represent the accused during hearing/trial/appeal. Subject to means test.

PART II: Lawyers’ Remuneration under the National Legal Aid Foundation

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For Trial / Hearing:

•At the Magistrates’ Court (per accused) – RM650

(USD172)

•At the Sessions Court (per accused) – RM850 (USD225)

•Appeal to the High Court (per accused) – RM1,200

(USD318)

Successful Plea Bargaining per accused w/o trial – RM200

(USD53)

For Mitigation per accused (No Trial) – RM50 (USD13)

For Remand application per accused – RM30 (USD8)

For Bail application per accused – RM50 (USD13)



Jan-Dec 2013 : 91,544 Jan-Dec 2014 : 157,971

Cases handled

Govt funding

Expenditure 2014 : RM9,350,000

2011 : RM5m + RM200,000 from Bar Council 2012 : RM10m 2013: RM20m

Personnel 1510 lawyers registered

Costs

Part III: Legal Aid Department

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Established pursuant to the Legal Aid Act 1971 under

Prime Minister’s Department

Scope of work

Family Law & Matrimonial Disputes

Adoption Act 1952

Probate, Letters of Administration & Small

Estates (Distribution)

Workmen’s Compensation Act 1952

Road Transport Act 1987

Moneylenders Act 1951

Hire-Purchase Act 1967

Tenancy proceedings

Consumer Claims

Expenditure 2013 : RM21,496,140.00

Part IV: Financials for 2014 - Total Cost of Legal Aid in 2014

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Bar Council Legal Aid Budget 2014 :

RM1.65m

(USD437,665)

National Legal Aid Foundation 2014 : RM9.35m

(USD2.48m)

Legal Aid Department 2014 (approx) : RM21.5 m

(USD5.70m)

Total : RM32.5m

(USD8.62m)

Financials for 2014

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Attorney General’s Chambers Expenditure:

Total Expenditure - RM197.4m

Prosecution - RM8.97m

Civil Suits - RM6.38m

Trials & Appeals - RM4.73m

Sub-total - RM20.08m (USD5.33m)

Financials for 2014

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M’sia’s Gross Domestic Product (GDP) : RM1,106b

(USD293b)

M’sia’s Gross National Income (GNI) : RM1,069b

(USD283.6b)

M’sia’s GNI per capita per year : RM34,123

(USD9,051)

M’sian Average Gross Income per month: RM2,843

(USD754) M’sian Govt Revenue : RM224.09b (USD59.44b)

Malaysia’s population : 30.4m (of which, 27% is rural)

Minimum wage : RM900 per month (USD238)/RM10,800

(USD2,864) per year

Financials for 2014

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Percentage of Legal Aid Exp to GDP : 0.000029%

Percentage of Legal Aid Exp to GNI : 0.00003%

Percentage of Legal Aid Exp to Govt Revenue :

0.00015%

Valuing Justice : Moving Forward

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State Funded & Administered : Bar Representation

lawyers not paid full commercial rate but not a nominal

fee

Bar Funded, Administered & Representation

State Funded, Administered & Representation

-Public Defenders Office & Civil Legal Aid Bureau

State Funded : Bar Administered & Representation

lawyers paid nominal amount

PART V : Valuing Justice – Moving Forward

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Access to Justice : Values

As we construct a framework, is there cause for

some to de-construct and re-construct?

Valuing Justice : Is access to justice a

Livelihood, CSR or Duty issue?

“To no one will we sell, to no one will we refuse

or delay, right or justice” – Magna Carta

PART V : Valuing Justice – Moving Forward

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Access to Justice : Values Should not just mean or refer to people who are caught in the web

or labyrinth of the criminal justice system; or those who cannot afford to employ lawyers to access the civil courts.

Its application should necessarily include society at large who need

the experience , expertise and voice of the legal profession to lend itself to society’s voice for fundamental rights and rule of law issues.

Is a concept that is all embracing and ought not to be interpreted

narrowly. The law is not only pertinent to or solely played out in courts. The law as an instrument of social order touches and affects the daily lives of people 24 hours a day, each day of the month and every month of the year.

Committees of the Bar Council

PART VI : Valuing Justice - Pro Bono Public

Role of the Bar

Public Interest

Human Rights Committee

Constitutional Law Committee

National Legal Aid Committee

Migrants, Refugees & Immigration Affairs Committee

Committee on Orang Asli Rights

Environment & Climate Change Committee

Task Force on Corruption

Safer Malaysia Committee

Committee on Judicial Matters

Criminal Law Committee 28

Committee on Orang Asli Rights

Advocacy – Public Interest Issues

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Assist the Orang Asli community, particularly with respect to their customary land rights and their rights as indigenous peoples

•Pro Bono Legal Advice & Legal Representation

1998 The Reformasi Trials

Two mass trials of 177 and 132 defendants, fixed for 3 months on the trot, pro bono volunteer lawyers of whom

95% were civil lawyers, 2 days crash course on criminal trials and voir dire. Obtained 99% acquittals – 4 out of 309

convicted.

Representation– Pro Bono Public Interest Cases

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On standby - despatched to police stations in anticipation of mass arrests

Provide urgent legal representation for arrested persons

Rapid Response Legal Team

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Royal Commission to Enhance the Operation & Management of the Royal Malaysia Police (May 2005)

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Commission of Enquiry of the Video Clip Recording of Images of a Person Purported to be an Advocate & Solicitor speaking on the Telephone on Matters Regarding the Appointment of Judges (May 2008)

Royal Commission of Enquiry into the Death of Teoh Beng Hock (22 June 2011)

Monitoring & Fact-Finding Missions


Fact-Finding Mission to Pakistan: Attack on the Judiciary in Pakistan (15 Aug 2008)

1

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Visit to Fiji by LAWASIA Observer Mission in March 2007. Abrogation of the Constitution and Removal of Judges in the 2006 Fiji Military Coup

2

508 Rally (08.05.2013) Observation by Malaysian Bar Monitors

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508 Rally (08.05.2013) Observation by Malaysian Bar Monitors


Valuing Justice: Walk for Peace and Freedom 2014

Photo by Malay Mail

Access to Justice: Walk for Peace & Freedom

2014

“We are here to claim back democratic public space. We are here to say as much as you try,

you can’t stifle speech. You can’t stop expression of thought by thinking Malaysians.”

Christopher Leong, President, Malaysian Bar (2013-2015)

Christopher Leong 30th President/Immediate Past

President Malaysian Bar

THANK YOU

NO FEAR . NO FAVOUR

national access to justice and pro bono …...christopher leong 30th president/immediate past...

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