Legal aid shrinking due to delayed payments, Malaysian Bar report says


Source: The Malay Mail Online

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MMO infographic

KUALA LUMPUR, March 18 — Fewer people are getting free legal aid and fewer lawyers are providing such services due to delays in payments in a government-backed scheme, the Malaysian Bar’s annual report said.

In the report presented at the Malaysian Bar’s 71st annual general meeting today, it acknowledged the National Legal Aid Foundation (YBGK) —which is jointly coordinated by the Bar Council and government — was facing issues in making timely payments to lawyers providing counsel under the scheme.

“For a variety of reasons, payments to YBGK lawyers began to slow down from November 2015,” the Bar Council’s National Legal Aid Committee said in its report that was sighted by Malay Mail Online.

“The delay in payments to YBGK lawyers caused immense difficulties for the lawyers, and led to great dissatisfaction and a decrease in the number of lawyers prepared to take on new YBGK work.”

The committee then cited annual statistics reflecting this problem, noting that the number of clients receiving free legal aid under YBGK increased by 41.9 per cent from 2014 to 2015, but fell by 21.4 per cent from 2015 to 2016.

According to the statistics provided by the committee in the report, YBGK — which helped 49,406 people when it first started in 2012 — had been steadily serving more individuals requiring assistance in criminal cases.

Lawyers participating in the scheme aided 163,236 people in 2014 and 231,655 in 2015, before dropping to 181,993 in 2016.

When contacted, the Bar Council’s National Legal Aid Committee co-chair Ravi Nekoo declined to elaborate.

“The president of the Bar will be commenting on that, but we have taken steps to resolve that issue,” he said.

In a separate part of the Malaysian Bar’s annual report, the YBGK steering committee chaired by Ravi reported that 2016 was a difficult year for the scheme “primarily because of a cash flow problem”, with the delayed payments to lawyers hampering plans for an audit to improve the quality of services provided by YBGK lawyers.

The delayed payments also caused a drop in the number of training sessions needed for lawyers who want to provide legal aid services under YBGK, it said.

“The delay in payments resulted in a general decline in morale, and fewer requests from the State Bar Committees for training. There were also concerns about increasing the number of YBGK accredited lawyers, when those already in the scheme were not being paid for the work they had done,” it said.

“The problem of delayed payments has been addressed over the last few months, and while it is still an issue we have to contend with, it is hoped that the YBGK scheme will be able to operate more smoothly, and to improve and expand, in 2017,” the committee said, also thanking all YBGK lawyers, particularly those who continued to take on new cases despite the delays.

There are currently 2,358 lawyers accredited to provide legal aid under YBGK, with 1,706 being active.

In the same report, it was stated that Malaysian Bar president Steven Thiru had raised the issue of delayed payments with the Attorney-General who chairs the YBGK Board and the minister in charge of legal affairs, who is also YBGK’s patron.

It also said several Bar Council staff were sent to YBGK headquarters since last August to help clear the backlog in processing of payments, while the YBGK board had directed the foundation’s manager to prioritise clearing outstanding claims and for all eligible claims made up to September 2016 to be cleared by the end of 2016.

“Since then, there has been some improvement in the release of payments to YBGK lawyers, but the issue has not been completely resolved. YBGK lawyers have also had to contend with deductions being made when claims are paid,” it said, adding that the YBGK headquarters has since been directed to proceed in a more “reasonable” manner in relation to the claims amount.

The report said clear timelines should be established after the backlog is cleared for timeframes on submission of claims by YBGK lawyers for services rendered, for the Legal Aid Centre to process and submit the claims to YBGK headquarters, and for the YBGK headquarters to make out the payments to lawyers.

Prime Minister Datuk Seri Najib Razak had launched the YBGK scheme on February 25, 2011, and it began operations on April 2, 2012. The YBGK website stated that RM5 million was needed for its launch.

In the prime minister’s Budget 2012 speech, he announced the federal government would provide an additional RM10 million in 2012 to bring the total sum for the scheme to RM15 million. The Budget 2013 speech confirmed that RM14 million was provided as launching grant and that an additional allocation of RM20 million is to be allocated for 2013.

Checks by Malay Mail Online showed that YBGK did not receive any mention in the prime minister’s Budget speeches in subsequent years.

The YBGK is one of three official avenues for legal aid in the country and the only one solely dedicated to criminal cases, giving free legal assistance to both young non-Malaysian offenders aged below 18 and Malaysian citizens in such cases.

YBGK provides free legal aid to all Malaysians regardless of their financial means when they are arrested and detained at the police station and during remand hearings, besides representing accused individuals applying for bail and when they are charged in court. Only those earning below RM36,000 annually will be eligible for YBGK aid during trials.

The Malaysian Bar president had at the opening of the legal year last year said YBGK lawyers had since December 2014 met with 40 death row prisoners to assist them in seeking a pardon, and had at this year’s opening of the legal year stressed that a state-funded legal aid programme such as YBGK is as important as a state-funded public health scheme and that it would be unthinkable for such services to be wound down.

The Bar Council’s self-funded Legal Aid Centres that are set up in all states in Peninsular Malaysia handles cases involving matters such as criminal, family, Shariah and employment law, with the almost four-decades-old initiative assisting 19,629 people in 2016.

The Legal Aid Centres gave free legal aid to 18,851 people in 2015, 19,057 in 2014, 20,822 in 2013 and 21,381 in 2012 and 24,562 in 2011, the report showed.

As for the Legal Aid Department, Malay Mail Online’s checks showed that the estimated government allocation for this department that is parked under the Prime Minister’s Department’s Legal Affairs Division for 2017 is RM23,562,600, as compared to 2016’s RM27,480,500.

The Legal Aid Department assists Malaysians in civil, criminal, Shariah case, with those earning less than RM25,000 annually are eligible for free legal aid services, while those earning between RM25,000 and RM30,000 will have to contribute RM300 for the legal aid services.

Last August, de facto law minister Datuk Seri Azalina Othman Said said the government was studying the possibility of streamlining legal aid services to address possible overlap between those provided by the government, the Malaysian Bar and non-governmental organisations, adding that the government may look into how it would determine who is entitled to receive legal aid instead of just judging based on their income levels.