OVERVIEW OF YBGK
It was revealed in Parliament in November 2009 that accused persons were unrepresented in 84,376 out of 108,528 criminal trials that took place in the magistrates court in 2008. The reason for this state of affairs was because there were a large number of people who did not receive legal assistance from the two main providers of legal aid in Malaysia
- The Government Legal Aid Department and the Bar Council Legal Aid Programme. The Government Legal Aid Department (Jabatan Bantuan Guaman) which has been in existence since the 1970s is governed by the Legal Aid Act 1971. The Act restricts the Legal Aid Department to a narrow range of criminal matters i.e. representation for offences under the Minor Offences Act and Child Act and mitigation when it comes to other criminal offences.
The Bar Council Legal Aid Programme which was establish in the early 1980s does a wide range of criminal defence work but this programme is hampered by limited resources. All the 15 centres run by the Bar Council are wholly financed by annual contributions made by members of the Malaysian Bar. Thousands of persons went unrepresented in criminal trials because of the gap of services between the Government Legal Aid Department and the Bar Council Legal Aid programmes.
The Yayasan Bantuan Guaman Kebangsaan (“YBGK”) was set up to plug this gap. The suggestion of setting up the YBGK arose during a meeting between the Prime Minister and members of the Bar Council on 7 Jan 2010. At a meeting held on 3 March 2010, the Cabinet agreed that YBGK be formed under the Companies Commission of Malaysia. YBGK was incorporated on 25 January 2011 and launched by the Prime Minister of Malaysia, YAB Dato’ Sri Mohd Najib b Tun Abdul Razak, on 25 Feb 2011. YBGK officially commenced operations on 2nd April 2012.
YBGK provides free legal assistance to all Malaysians (irrespective of their financial means) at the police station, the remand hearing and when they are charged in court. Insofar as hearings are concerned, a means test will be applied and only those whose income does not exceed RM36, 000 per year will be entitled to receive legal aid. The existing Bar Council State Legal Aid Centres serve also as the offices of the YBGK. In addition the offices of the KL LAC also serve as a Secretariat for the YBGK.
1. YBGK PRISONS PROGRAM
Prisons’ Program is a program where Pupils are assigned to prisons to conduct interviews with prisoners, assisting them to see to their needs and also to refer them to the correct channel should the prisoners need legal assistance.
2. YBGK WALK-IN
This program enables public that need YBGK help to walk-in to the Legal Aid Centre to seek for assistance. There are pupils stationed at the Legal Aid Centres daily to interview the clients, assisting them to see their needs and also to refer them to the correct channel should the prisoners need legal assistance.
Under this program, person being arrested (OYDS) will be given legal representation by the YBGK lawyers who are on duty. During arrest, the OYDS will be interviewed as to the time and place of arrest and he will be advised on his rights upon arrest.
OYDS who are detained for a period of time pending police investigation is said to be under remand. YBGK lawyers will be provided for OYDS who require representation during remand hearing either to reduce number of remand days or to reject the remand application.
Bail is the temporary release before trial of a person charged with criminal offence (accused), or when a person pleads guilty but the supporting documents are not ready. The bail is given to ensure that the accused will attend court at his trial to answer the charges against him. YBGK lawyers will be assigned to assist the accused with the bail application in magistrate courts and upon request at other courts.
When an accused has been found guilty after trial and before sentence is passed, he has a right to be heard in mitigation of the offence he is accused of to obtain a lighter sentence. The accused or his/her family can approach the YBGK requesting for assistance of a YBGK lawyer to help mitigate the case.
An accused who does not plead guilty to the offence he is accused of is said to be claiming trial. During this process, the accused need to be represented by a lawyer to help him defend the case. Accused who needs free legal representation at trial stage can inform the court of such, walk in to YBGK if they are on bail or inform their family members to approach YBGK to seek for assistance. A means test will be applied and only those whose income does not exceed RM36, 000 per year will be entitled to receive legal aid.
When the accused or the Public Prosecutor is not satisfied with the outcome of the case, either on the decision or the sentence, they can appeal the case to a higher court. YBGK lawyers will be provided to those who need a lawyer to represent them at the appeal stage. While an appeal by the accused will only be assisted after going through the merits and decision of the case, an appeal by the PP/DPP will most often than not be given representation.
9. PARDONS PETITION
Unlike the other representations provided by YBGK, pardons petition is an assistance to write a petition for death row convicts who have exhausted all levels of appeal. This is a plea by the accused to the Monarch to pardon them by commuting their death sentence to life imprisonment or to reduce the duration of imprisonment.