"Should Malaysia Impose Pro Bono On A Mandatory Basis ?" by HaKita
Authored by: Belinda Chow Jia Hui
Edited by: Aisha Husna binti Hapidra
Pro Bono
Pro bono publico or better known as pro bono carries the meaning of ‘for the public good’. It is a common term in the legal field where lawyers would provide free or at a reduced rate for legal services to people in need on a pro bono basis for the public interest.
It is seen as a way of imparting benefit for a greater good rather than working for profit. In Malaysia, pro bono legal services are performed on a voluntary basis by legal practitioners. For instance, it is common in Malaysia for pro bono cases to be for refugee or blind association or corporate social responsibility.
Legal Aid
On the other hand, legal aid service are performed primarily through
- Malaysian Bar Council under the Legal Aid Center – in areas such as criminal law, employment law and family law
- Legal Aid Department – in civil and criminal cases
- National Legal Aid Foundation (YBGK) – specifically for criminal cases
The Legal Aid Center is set up pursuant to Legal Profession Act 1967 (hereinafter known as LPA). The Malaysian Bar Council takes on an obligation to promote pro bono legal service where the qualified individual would be represented at no cost. The Malaysian Bar Members would contribute to pro bono work in areas such as human rights, criminal defence and public interest. The Legal Aid Act 1971 (hereinafter known as LAA) laid down the administration of state-funded free legal aid to qualified people for civil, criminal and Shariah matters.
The criminal matters covered under the Legal Aid Center are:
- Criminal proceedings where the accused was not represented by any counsel had pleaded guilty and wished to make plea in mitigation
- Criminal proceedings under Child Act 2001
- Criminal proceedings under Minor Offences Act 1955
The LAA focuses on state-funded legal aid. The general practice in Malaysia does not make it compulsory for lawyers to perform pro bono work. However, it is mandatory for pupils to serve at legal aid center for minimum 14 days during their pupillage.
Other than that, the legal aid centers provide legal assistance in areas such as criminal law, public law, employment law, family law and Shariah law. A person qualified to perform pro
bono legal services in Malaysia are advocates and solicitors licensed to practice law Malaysia where he must be admitted and enrolled as an advocate and solicitor under LPA according to Section 3 of LPA.
Difference between Legal Aid and Pro Bono
HaKita had recently invited Cassandra, one of the partner from MahWengKwai & Associates to THURights where she had emphasized the difference between legal aid and pro bono: legal aid is granted by Malaysian Bar, state bar and YBGK where individuals must fulfil certain criteria for them to be qualified for legal aid whereas pro bono refers to situation where lawyers took on the case voluntarily for individuals with a reduced rate or without any charges. In corporate matters, the lawyers would assist in drafting contracts and providing legal advice to the qualified individuals.
How to Know If You’re Qualified For Legal Aid
Before a person can apply for legal aid, there are several test that are conducted by the Legal Aid Department to determine whether that person is qualified to obtain legal assistance.
The first test that will be performed by Legal Aid Department is the means test.
1. Means Test
One would be required to pass the means test to be qualified for legal aid – to determine if the individual’s financial capabilities fall within the conditions. Such test could be done through online test but it would not be final.
While for Malaysian Bar Council and National Bar Council, walks into their office is required to fill out form for them to assess financial capabilities.
The second test that will be performed by Legal Aid Department and Bar Council is the merits test.
2. Merits Test
The merits of the case will be assessed and determine if there is reasonable ground(s) for legal aid to be granted. The National Bar Council does not employ merit test as it is one’s right to be represented by lawyer in criminal cases where one chooses to be represented.
Payment of Pro Bono Service
A. Legal Aid Department
To register for legal aid
- Visit one of their branches and register by filling in forms with payment of registration fee of RM10
- Depending on one’s yearly salary and individual case, additional sum would be required to be paid to LAD. However, individuals earning less than RM30,000 yearly would be granted with free legal aid service
B. Bar Council
No payment of legal fees is required but filing fees in court will be paid by individuals themselves. In situations where one wins the case, the court has discretion to allow claims to be made for the filing fees.
C. YBGK
Under YBGK, certain requirements of financial background is taken into account as follows:
- Person earned less than RM 25,000 per year would be provided with free legal aid
- Person earning between RM25,000 – RM36,000 would be charged at rate determined by YBGK’s BOD
Pro Bono in Malaysia
According to Cassandra, it is subjective on whether pro bono should bee made as mandatory or voluntary basis in our country as work life balance of the lawyers should be taken into consideration. Still, at the same time such beneficial work should be encouraged as part of our culture but advancing human rights should be done on a voluntary basis. It should not be forced.
In the long run, it would be beneficial for law students to be exposed to pro bono work based on Belle, a law student from University of Leeds as it would equip them with legal skills and foster the value of being compassionate to others in unfortunate circumstances or have no capacity to file for proceedings in court.
The culture of pro bono can be encouraged through organizing talks in order to incorporate such activity in our culture and being more compassionate to people around us through having conversions with people to know the needs they might have.
In conclusion, it’s important that we take the initiative to discuss more on the topic of pro bono to encourage more lawyers to take up pro bono cases. This would also be a pushing factor for people to create a culture of pro bono and volunteerism work in helping those in need and underprivileged.