• Important to have representation in court
• 'Comprehensive system needed'
• Legal Aid Bureau shackled by limited jurisdiction
'You have the right to an attorney, if you cannot afford an attorney, one will be appointed by the court to represent you.' This oft-quoted statement may be the norm in homicide dramas but — with the exception of cases involving capital punishment — not in real life, as Sonia Ramachandran & Audrey Vijaindren learn
SHOCKING. Outrageous. Appalling. Scandalous. Any of these words could be used to describe the situation. And they would all be right.
Every year, more than 500,000 accused persons appear in court without a lawyer. This accounts for a shocking 95 per cent of those who are remanded, according to the Bar Council.
Also, there is nothing in our law which says an accused person has to be informed of, or provided with, the right to legal representation. And more than a few people under remand plead guilty just to get it over with.
This has led Bar Council vice-president Ragunath Kesavan to claim that the judicial system catered for those with money, not for those without.
"It presupposes an accused can afford a lawyer," he said, adding that the situation was worsening with the increase in population and a rise in social problems.
But all is not lost. The new Minister in the Prime Minister's Department tasked with handling judicial and legal matters, Datuk Zaid Ibrahim, said he would look into the problem.
Ragunath said: "Most developed countries recognise legal aid as a basic human right. If you're arrested in Malaysia, you have a right to have a legal representative under the Criminal Procedure Code.
"But one is not necessarily provided for you. Unless of course, you have the money to pay for counsel yourself.
"The more money you have the better your chances of obtaining a lawyer. Eventually, this will increase your odds in the battle."
Due to financial constraints, he said, marginalised groups in Malaysia, comprising mainly of migrants and juveniles, were forced to represent themselves.
"People are charged in court daily. More often than not, they plead guilty thinking that is the only way out for them."
Often, those on remand are advised to plead guilty so that they can go home.
Ragunath said if, for example, an accused was remanded for three months before being brought to court and the sentence for the crime was also three months, he would likely be "advised" to plead guilty instead of claiming trial.
"He doesn't understand the charge and thinks that pleading guilty would be the fastest way out of his fix, not realising the consequences of his action.
"Pleading guilty means he will be stuck with a criminal record for the rest of his life. There are so many people with criminal records because they are not aware of their rights."
Thousands of accused, he said, were in the same boat due to ignorance of the law and the inability to engage a lawyer.
"Lawyers who have trained for years can face difficulty interpreting the law, what more the layman," said Ragunath.
Ravi Nekoo says only those facing capital punishment are assured of receiving legal counselIn agreeing with Ragunath, Legal Aid Centre chairman Ravi Nekoo said only those who were facing capital punishment were assured of counsel.
In this case, the court would assign a lawyer if the accused could not afford one.
There are two forms of legal aid in the country, namely those provided by the Bar Council's legal aid centres and the Legal Aid Bureau set up by the government.
The government-run Legal Aid Bureau, said Ragunath, mostly handled syariah and civil matters. For criminal cases, the Bureau's role was only to mitigate when the accused pleaded guilty.
Ragunath said legal aid centres run by the Bar Council were the only law society-financed legal aid scheme in the world.
With 13 centres throughout the country, it is funded solely by members of the Bar Council who contribute RM100 yearly, adding up to RM1.2 million.
"Our services are purely pro bono. A person seeking legal aid will first register at a centre before sitting for a 'means' test. Upon passing the test, they are assigned a lawyer," he said.
The problem was, he said, the Bar Council had set up this scheme in the 1980s as a "stop-gap" measure until a full legal aid scheme could be implemented by the government.
Volunteerism, he said, could only go so far. And although the centres are reluctant to turn away clients, they cannot cope with the volume.
"We can't provide services to all who seek help. We can only reach out to 20,000 people a year. This is only scratching the surface."
He lamented the fact that the government's Legal Aid Bureau received one of the smallest allocations under the Budget.
Ragunath urged the government to provide legal representation for the accused, irrespective of race, religion or nationality.
"Most inmates at the Kajang prison, for instance, are foreigners. The Legal Aid Bureau only provides aid for Malaysians."
Ragunath said most people who sought aid were insecure and frightened.
As such, lawyers representing them should be sensitive to issues involving sex workers, abused women, drug addicts and migrant workers.
"The Bar Council is working with non-governmental organisations such as the All Women's Action Society, Women's Aid Organisation and Tenaganita to help these people.
"We visit remand centres twice a month. We also go to juvenile homes. We are helping many, but our outreach is limited.
"Many who need legal aid don't come forward, especially those from rural areas and estates."
On the issue, Zaid said: "We may have to look again as to the eligibility, as to the scope that we can offer.
"It might be a bit restrictive now. If we have the means, we would want to expand legal aid to cover a wider net.
"I think it is important that people who are charged and cannot afford lawyers have some way to get legal representation. It's something that we have to look into."
WHAT THE LAW SAYS
ARTICLE 5 (3) of the Federal Constitution says: “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.”
Section 28A(3) of the Criminal Procedure Code 1999 says that where the person arrested wishes to communicate or attempt to communicate and consult with a legal practitioner of his choice, the police officer shall, as soon as possible, allow the arrested person to do so.
PUBLIC DEFENDER PROGRAMME
IN the United States, public defenders are available for any criminal defendant who cannot afford her/his own legal representation.
The US Supreme Court has determined that the Bill of Rights of the US Constitution, in particular the 6th Amendment, requires public defenders to be available in all criminal proceedings as one of the basic rights of all Americans.
That Amendment says: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favour, and to have the assistance of counsel for his defence.”
Source: Kathryn Taylor, US Embassy Press attache, Kuala Lumpur
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Important to have representation in court
WHAT started out as a normal day in court for lawyer Mohd Radzlan Jalaludin on Jan 11 turned into a full-blown drama, the likes of those shown on television.
For Mimi (not her real name), Radzlan and his friends turned out to be her guardian angels.
While the 28-year-old volunteer with the Bar Council Legal Aid Centre was waiting for the court to be in session, he noticed a woman sitting quietly near the dock gate.
Although her sad demeanour tugged at Radzlan's heart, he did not approach her as the legal profession ethics forbade touting.
" I just stared at her and suddenly she started crying. I felt bad, so I approached her," he said.
Then Mimi's story unfolded. She had been caught stealing but claimed not to have done it.
Mimi was buying things for her school-going children. While she was at the check-out counter, she realised there was a bottle of talcum powder costing RM48 among her things.
Mimi claimed she intended to put it back but "accidentally" took it with her. The security guard detained her and she was remanded for 12 days.
"She did not have a lawyer and did not know what to do. She said she was kept in the dark about what to do next," said Radzlan.
"Her remand period was extended three times causing her to be kept in jail for 12 days before she was charged."
Radzlan tried calming down Mimi but her wails grew louder as her husband and children arrived.
"I asked her husband if he could post bail for her but he only had RM50 with him.
"I told him the prosecution officer will usually ask for RM1,000 but that I would ask for a reduction of the amount but that it wouldn't be by much."
One of the senior counsel with Radzlan suggested they pool their money and bail her out.
"The senior lawyer, two dock brief students and I managed to raise RM300.
"The sympathetic magistrate set bail at RM300 and the woman was released that same day."
Her case is now fixed for trial on Monday.
And Radzlan is going to represent her again, pro bono (for free).
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'Comprehensive system needed'
THE Bar Council wants the Legal Aid Act to be amended and its jurisdiction widened.
"We are lobbying the government for a comprehensive legal aid structure as well as remuneration for legal aid lawyers who volunteer their services at the government bureau," said Bar Council vice-president Ragunath Kesavan.
The government should also waive certain fees if the case falls under legal aid.
" For example, the filing fee for a divorce case is RM700," said Ragunath.
"Imagine a woman seeking divorce. She is already suffering and is, in most cases at this stage, already deprived of her husband's income. Now she has to fork out RM700."
He said something akin to the United States Public Defender Programme, where anyone who wants legal aid can walk into a centre and take the "means" test to see if they qualified, was needed here.
"Although we currently have enough legal aid centres and bureaus, there are not enough lawyers or sufficient funds to man them," said Ragunath.
There should also be in-house lawyers and a panel of lawyers to do legal aid as well as a waiver of the "means" test for cases of public interest.
"Orang Asli land matters are one example of public interest cases. Others include cases where a large number of people have been arrested, like the Hindraf (Hindu Rights Action Force), Bersih and Reformasi gatherings. These cases involve a sense of urgency."
But why would the government fund legal aid cases where the accused is challenging the government?
Ragunath said: "Judges are government servants. So is the prosecution. They are all put there to play their individual roles without bias.
"Legal aid lawyers with the government should play their role in representing their clients irrespective of who they are and who they are up against."
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Legal Aid Bureau shackled by limited jurisdiction
Legal Aid Bureau director-general Dr Hassan Abdul Rahman says gross annual income must not be more than RM30,000 to qualify for aid.DOES the Legal Aid Bureau run by the government represent the accused in criminal cases only when a plea for mitigation is needed?
It is not "100 per cent true", said the director-general of the bureau, Dr Hassan Abdul Rahman.
"We have the jurisdiction to represent an accused who is going to plead guilty and mitigate for leniency.
"With regard to other criminal matters, our jurisdiction is limited. The other area of criminal proceedings we can handle is that under the Minor Offences Act 1955.
"If the client comes to us for a drug-related case, we don't handle it because it does not fall within our jurisdiction," said Hassan.
However, he said, anyone needing free legal counsel for such offences could write to the minister (Minister in the Prime Minister's Department tasked with legal and judicial matters).
"In cases where there is hardship, it is in the interest of justice to do so.
"The minister may authorise the director-general of the bureau to provide legal aid."
However, Hassan said appeals to the minister were rare.
"Since I took office in June last year, no one has written to the minister asking to be represented by the Legal Aid Bureau, and before that, it was very rare, too.
"It is difficult for us to represent criminal cases as we are with the Attorney-General's Chambers and so is the prosecution. It would be a conflict of interest."
Hassan said a person's gross income must not be more than RM30,000 a year to qualify for legal aid under the bureau.
There are 23 legal aid bureaus in Malaysia, including its headquarters in Putrajaya.
On whether legal aid was provided to foreigners, Hassan said section 29 (1) of the Legal Aid Act said they could provide legal advice to "persons resident and present in Malaysia".
"The legislation is silent on whether or not we can represent a foreigner."
On the Bar Council's statement that more than 500,000 accused persons a year go unrepresented, he said the bureau did not have any figures or records on it.
He declined to disclose the allocation the bureau received under Budget 2008.
Sonia Ramachandran and Audrey Vijaindren
NST Online
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