Malaysian Legal System

LAW 434

WEEK 13

LEGAL AIDS
There are 3 main organizations offering free legal aids in Malaysia:
• Legal Aid Bureau @ Biro Bantuan Guaman(BBG)
• Bar Council Legal Aid Centre (BCLAC)
• National Legal Aid Foundation (NLAF)

Legal Aid Bureau

• Legal Aid Bureau (BBG) was introduced in Malaysia in 1970.
• At its inception(permulaan), the BBG was placed under the AG’s
Chambers. Following the establishment of the Ministry of Law in 1985,
it was placed under that Ministry. When the ministry was downsized to
the Legal Affairs Division in the Prime Minister’s Department in 1995,
the BBG was put under that division where it has remained ever since.
• The government-funded legal aid scheme is governed by the Legal Aid
Act 1971 (Act 26) and the Legal Aid and Advice Regulations 1970 and
Legal Aid (Mediation) Regulations 2006.

The Objective of the BBG

The objective of the BBG is to implement Article 8(1) of the Federal
Constitution which proclaims that all persons are equal before the law
and entitled to the equal protection of the law by providing legal advice
and representation to those who cannot afford to pay legal fees.

Organizational Structure of the BBG

The BBG falls under the Legal Affairs Division of the Prime Ministers
Department.
• That Division is responsible for policy, financial, and service
management, and for providing the infrastructure of the BBG.
• The BBG is headed by the Director General of Legal Aid. He/she is
appointed by (and responsible to) the minister in charge of legal affairs
from among members of the Judicial and Legal Service. He/she is
assisted by 2 deputies:
- Deputy Director General for civil matters and
- Deputy Director General for Syariah law matters.
• The BBG is assisted in carrying out its functions by:
- A panel of solicitors and
- A team of welfare officers.
• The welfare officers assist the BBG in investigating the means of the
applicant for legal aid, and the desirability of assisting them
Scope of Legal Aid Provided by the Legal Aid Act 1971
• The BBG is empowered by the Act to provide the following services:
• 1) to provide legal advice on all matters
• 2) to provide legal aid and representation in a) criminal and b) civil
proceedings (in the court of first instance and appellate courts) of the
description specified in the Second and Third Schedules, respectively;
• 3) to educate members of the public on their rights under the law,
and
• 4) to provide mediation services.
Eligibility for legal aid
s.29 provides that legal advice shall be available to persons resident and
present in Malaysia. Foreign nationals legally residing and employed in
Malaysia is qualified for legal advise from BBG provided they satisfy the
requirements sets out in s.29(4)

Eligibility criteria for legal aid and representation in legal proceedings

• This contained in ss 15 and 16 which set out two test – the means test and
merit test.

Means test
There are two main categories an applicant may fall into (ss15(2) and 16(1)
(b). Failing which, you can apply to the Director of BBG for a special
exemption.
• i. First category – Free Legal Aid
Applicants whose yearly income does not exceed RM25,000 (i.e.
RM2,083 per month)

• ii. Second category – Subsidised Legal Aid

Applicants whose yearly income is more than RM25,000 but does
not exceed RM30,000 (i.e. RM2,500 per month).

• iii. Special exemption

Applicants who do not qualify for the first or second category can
apply for a special exemption to obtain legal aid with the approval
from the ministry. This application is made through the Director of
the BBG.
Merits test
• This test is laid down in ss15(2)(a) and 16(1)(a) which requires the
applicant to satisfy the Director General that he or she has reasonable
grounds for taking, defending, continuing, or being a party to a legal
proceedings (that the applicant is reasonably likely to succeed in the
proceedings concerned)

PROCEDURE FOR APPLICATION OF LEGAL AID OR ADVICE

Legal advice
• A person desiring only legal advice under s 29 must apply to the
Director General, and pay the registration fee prescribed if he or she
qualifies for legal advice.
Legal aid in criminal proceedings
• Any person who is charged or convicted before or by any court may at any time
within 14 days after being charged or convicted apply in writing in the prescribed
form to
- the magistrate or judge before whom he or she was charged or by whom the
order was made, or
- the Director General
for legal aid for his/her defence or for the preparation and conduct of his/her
appeal.

• Where the public prosecutor has lodged a notice of appeal against any judgment,
sentence or order pronounce by any court, the respondent may apply to
- the magistrate or judge by whom the judgment, sentence or order was made, or
- the Director General
for legal aid resisting appeal
• Every application for legal aid must be accompanied by a statutory
declaration verifying the facts stated in the application.

• If the judge or DG is satisfied that the person applying for legal aid is
without adequate means to obtain legal aid and that it is desirable in
the interest of justice that such legal aid should be given, he/she must
certify to that effect. Upon certification the DG may arrange for the
defence of that person and for payment of the expenses of all
witnesses or for the preparation and conduct of appeal or resisting the
appeal.
Legal aid in civil proceedings

• Any person who wishes to be granted legal aid must apply to the Director
General in a prescribed form and accompanied by a statutory declaration
verifying the fact stated in the application. The Director General may:
1. Make inquiries concerning the means of the applicant and the merits of the
case;
2. require the applicant to provide such information and documents as the
Director General may require in order to consider the application;
3. require the applicant to attend personally (to enable the Director General to
identify the issues, needs of the applicant and appropriate remedies);
4. refer the application or any matter arising out of the application to any solicitor
serving on the appropriate panel to investigate the facts and make a report on
those facts or to give any opinion on the facts or any question of law arising
out of the application;
5. take or cause to be taken such steps as may be necessary to safeguard
the interest of the applicant pending a decision on his/her application,
6. pay the expenses incidental to any of the abovementioned matters out
of fund provided for the purpose.

• When satisfied that the applicant meets both the means and the merits
test, the DG may issue a legal aid certificate which signifies that the
applicant is entitled to be granted a legal aid
• After the DG has approved an application for a legal aid certificate,
he/she shall notify the applicant of
- the amount if any which the applicant has to contribute, and
- the terms upon which a certificate will be issued to the applicant.
• An applicant who agrees to the term set out by the DG for the issue of
the certificate shall within 14 days of being notified, signify
acceptance of those terms in a prescribed form and lodge it with the
DG. When the applicant has complied with the terms stipulated, the
DG shall issue the legal aid certificate.

• Before any steps can be taken in the proceedings, the legal aid
certificate must be filed in the registry of the court in which the
proceedings are pending either by the AG or the solicitor on the
appropriate panel assigned to act for the applicant.
Bar Council Legal Aid Centre
• The Bar Council Legal Aid Centre (BCLAC) was founded by the
Malaysian Bar Council with the purpose of providing citizens equal
opportunity for the enforcements of their fundamental right to
equality before the law. It is one of two organisations in Malaysia
which provide FREE legal ADVICE & REPRESENTATION, and it has
branches to represent each state in Malaysia.

• The BCLAC are actively involved in pro-bono work in the community,

and conduct many programmes in cooperation with other
organisation (e.g. All Women Action Society (AWAM), Women’s Aid
Organisation (WAO), Sisters-In-Islam (SIS), Tenaganita’s Migrant
Workers Desk, Pink Triangle Foundation, United Nation High
Commissioner for Refugees (UNHCR)) to provide free legal advice &
representation to relevant parties.
• The BCLAC is funded by the sole contribution of members of the Bar
and cases are taken on a voluntary basis by dedicated lawyers. As
such, you will appreciate that their services are limited to those who
truly have no means to seek representation privately.

• The first thing that happens is that you will be interviewed to review
your eligibility for their services, using the Means Test (see below).
The counsellors will then review your case and provide guidance on
future actions required.

• If you have not brought all the required documents, the counsellors
may provide preliminary advice, but will require these documents to
be submitted to proceed further.
Means Test
The criteria for people who qualify for legal aid from the BCLAC are:
Applicants whose monthly income, after deduction of monthly
expenses, should be:
 Single person                                :    RM650
 Married couple (joint income)  :   RM900
 e.g. Single person      Salary           :  RM1000 p/m
                                    Monthly exp. :  RM450
                                   Balance      :  RM550 (QUALIFIED)
NOTE: Monthly expenses include rental, utility bills, medical bills,
personal expenses, monies given to support parents/family, etc.
When visiting the BCLAC, you should provide proof of income (e.g. pay slip), monthly
expenses (e.g. rental receipt, medical expenses etc.) and details of the case you seek help on.

What are the cases which are not covered by BCLAC?

Not all the cases are accepted by BCLAC - they do not help
individual on the below cases:
1. Motor Accident
2. Debt Collection
3. Defamation Conveyancing
4. Probate/ Letter of Administration
5. Any offence that carries a DEATH or LIFE SENTENCE
What if you do not qualify?

Even if you do not qualify for the above, the LAC are more than happy
to provide basic guidelines and directions for further action to ‘walk-in’
clients. They also hold a directory of legal firms available in the area.
Not all cases require legal representation. For example, for a small
claims case – no legal representation is necessary. Small claims cases
include all actions where the money damages claimed are not in
excess of RM5,000.
National Legal Aid Foundation (“NLAF”)

• The National Legal Aid Foundation (“NLAF”) was incorporated on 25

January 2011 as a result of a decision made at a Cabinet meeting on 3
March 2010.   
• The suggestion of setting up the NLAF arose during a meeting between
the Prime Minister and the Chairman and other members of the Bar
Council Malaysia, which took place on 7 Jan 2010. During the meeting,
the Prime Minister was informed that an estimated 80% of those tried
in court for criminal offences did not have legal representation. With
the formation of the NLAF those who cannot afford legal fees will be
provided legal assistance by the NLAF. Lawyers who provide legal
services through the NLAF will receive only nominal payments since
providing such assistance is part of their social responsibility.
• The NLAF is governed by a Board of Directors chaired by the Attorney
General. Other members are the Bar Council President, Secretary
General of Treasury, the Director General of Legal Affairs Division, the
Director General of Welfare Department, the Director General of
Legal Aid Department, President of the Sabah Law Association,
President of the Sarawak Advocates Association, a Dean of the Faculty
of Law in public learning institution and two representatives from the
non-governmental organisations to be appointed by the Minister.
NLAF ‘s Operations
• NLAF has started its operation on 2 April 2012 throughout Malaysia.
For Sabah and Sarawak, taking into consideration of human resource
factors, it operates only in Kota Kinabalu, Papar, Penampang, Tuaran,
Sandakan and Kota Belud and in Kuching, Miri, Sibu and Bintulu
respectively.
• For Peninsular Malaysia, NLAF operates through Legal Aid Centre
under the Malaysian Bar.
Service Provided
• NLAF provides FREE legal aid and advice in criminal matters including Syariah criminal
matters to all Malaysian citizens at the stage of arrest, remand, charge, bail application,
mitigation, hearing and appeal. 

• The conditions which need to be met in order to qualify legal representation and advice
in criminal matters are as follow−

A Malaysian citizen
• For legal assistance at the hearing and appeal stage, the applicant must have an income
that does not exceed RM36, 000 per annum subject to means test to determine who is
eligible for legal representation.
• The legal assistance provided by the NLAF will cover all types of criminal offences, with
the exception of those which carry the death penalty.
• Offences that carry the death penalty will not be covered by the NLAF as the court
provides assigned counsel to persons charged.
Arrest
The police or other enforcement agencies will inform the arrested person of his/her
right to be represented by a lawyer and will contact NLAF to represent the arrested
person subject to section 28A of Criminal Procedure Code or the arrested person
utilise his/her own lawyer.

Remand
NLAF will represent the arrested person during the remand application before the
Magistrate. 

Charged/Bail (ikat jamin)/Mitigation

NLAF will represent the accused during charged and when applying for
bail/mitigation.

Hearing/Appeal
NLAF will represent the accused during hearing/appeal subject to means test. 
THANK YOU