Baseline Study on Legal Aid in Southeast Asia

1. Baseline Study on Legal Aid in Southeast Asia Jaymie Ann Reyes Ateneo Human Rights Center Country Research Comparative

2. Why Legal Aid? • Essential element of a fair, humane and efficient criminal justice system based on the rule of law • Foundation for the enjoyment of other rights, including the right to a fair trial

3. Context: UN Guidelines and Principles on Access to Legal Aid in Criminal Justice Systems • Adopted in 2012 by the UN General Assembly • To provide guidance on fundamental principles which a legal aid system in criminal justice should be based • To outline the specific elements required for an effective and sustainable national legal aid system

4. What does Legal Aid Entail? • Legal advice • Legal assistance • Legal representation • Legal education • Access to legal information • Other services provided for persons through alternative dispute resolution mechanisms and restorative justice processes

5. Purpose of the Research • To survey each Southeast Asian country’s available information on existing regulatory framework on legal aid. • To also learn about the evolution of legal aid and access to justice, from where good practices may be learned from and replicated.

6. Methodology of the Research • Diagnostic Tool on Basic Assessment of a Legal Aid System developed by the Open Society Justice Initiative. • Primary sources of information: • desk and internet research, • visitations to institutions for materials gathering • interviews. • Focused mainly on materials gathering and analysis

7. Significance • In this context the aim of the research project is to explore and compare access to legal aid services and providers across the eleven Southeast Asian jurisdictions.

8. Comparative Matrix

9. Brunei Darussalam • The world’s only Malay Islamic monarchy with an unbroken royal lineage. • Legal system of Brunei is based on English Common Law but with a parallel Syariah law structure. • No provision on legal aid in the Constitution. • In reality, legal aid is only provided to persons unable to afford legal representation in criminal cases whereby defendants face capital charges. • The SyariahPenal Code Order 2013 called for an expanded legal aid scheme to assist those facing punishment that include the cutting of limbs and whipping. • Legal aid providers are 3 agencies in Brunei.

10. Cambodia • Adopts a Constitutional Monarchy form of government. • Very few lawyers due to the persecution during the Khmer Rouge Regime. • No constitutional definition of “legal aid.” • Guarantee to the right to legal aid provided in the Cambodian Code of Criminal Procedure which provides: The assistance of a lawyer is compulsory in the following cases: • Felony; • The accused person is a minor. If the accused person has not selected a lawyer, the lawyer shall be appointed upon the initiative of the court president in accordance with the Law on Statute of Lawyers.

11. Cambodia • Article 29 of the Law on the Bar, which provides, “[a]ll lawyers are obligated to defend poor people according to the same procedures and internal rules and in the same manner as the defense of their own clients.” • “Poor people” are defined under the law as those who have no property, no income, or those who receive insufficient income to support their living. (Cambodia Law on the Bar, Article 30)

12. Indonesia • The State has three branches that consist of executive, legislative, and judiciary. • “Access to justice” is guaranteed by the state under articles on human rights of the 1945 Constitution, however, legal aid is not expressly defined.

13. Indonesia • Under the Indonesian Legal Aid Law No. 16 Year 2011, legal aid is defined as legal services provided by designated legal aid providers without any charge to the legal aid beneficiaries, which may include poor individuals or poor communities. • The Ministry of Law and Human Rights is also mandated by the Legal Aid Law to administer the national legal aid system and to manage the State funding required to run the legal aid program.

14. Lao PDR • Article 83 of Lao PDR’s Constitution: Defendants have the right to defend themselves and lawyers have the right to provide legal assistance to the defendants. • Legal Aid available for both criminal and civil cases. • The Law on Criminal Procedure guarantees the right of an accused to defend his case, either by himself or by a lawyer who will provide him/her legal assistance. (Art. 7) • Role of courts, public prosecutors, interrogators and investigators to guarantee the right of defense in the proceedings.

15. Lao PDR • Where the accused or defendant is minor (under 18), a deaf or mute person, an insane or mentally ill person, someone who does not know the Lao language, or someone who will receive the death penalty, that person must have a protector. • If the accused person or defendant has no protector, the people’s court is required by law to appoint a lawyer. • In civil cases, an attorney or guardian is obligated to provide legal assistance to the litigant whom he or she is protecting. (Art. 33, Law on Civil Procedure of Lao PDR) • Legal aid services implemented through the Lao Bar Association only, with the help of international funders and organizations.

16. Malaysia • Malaysia has a federal government system operating within a constitutional monarchy. • The Federal Constitution recognizes the separation of governmental powers between the Executive, Federal Legislature and Judicial Branches. • The general right of an accused to counsel is guaranteed by the Constitution. • Malaysia is rich with laws and statutes that mandates both the Government and Bar Councils to render legal aid.

17. Malaysia • The Legal Aid Act of 1971, which created the Legal Aid Bureau, is the primary statute under which the State provides legal aid for both criminal and civil cases specifically mentioned in the law. • The Legal Profession Act of 1976 mandates the Malaysian Bar Councils to render legal aid, which is completely pro-bono to the client, save for a contribution to the expenses of the Bar Council Legal Aid Scheme. • This scheme is done by the Malaysian Bar through its legal aid centers (LAC) located in each of the state capitals in Peninsular Malaysia.

18. Myanmar • Myanmar is formally known as the Republic of the Union of Myanmar. • Although the Constitution provides for the general right of an accused to defense in accordance with existing laws, there is no law in Myanmar which provides for the specific definition of legal aid. • Apart from legal representation being made available to criminal defendants in cases punishable by death, there is no provision for state sponsored legal aid yet.

19. Myanmar • Additionally, the Attorney General Law provides that the Law Officers at the various levels of the Law Office have the duty to hire a lawyer for the accused in poverty who is accused of a criminal offence punishable with death. (Section 36) • Lawyers in Myanmar are also working for the establishment of a legal aid system inspired by South Africa’s model, where lawyers employed by an independent publicly-funded board, assist the poor for free. • On the way to having a legal aid law.

20. Philippines • The Constitution, as the fundamental law of the land, provides that the Philippines is a democratic and republican state where sovereignty resides in the people and all government authority emanates from them. • The right to legal aid and assistance is guaranteed by no less than the Philippine Constitution: “[f]ree access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty.” (Art. III, § 11.) • Under Article VIII, the Judiciary is mandated to promulgate rules concerning legal assistance to the underprivileged. (Art. VIII, § 5. (5)) • Article XIII on Social Justice and Human Rights on role of the Commission of Human Rights to provide legal measures to protect human rights.

21. Philippines • Legal aid services guaranteed by the State primarily through the Public Attorney’s Office, extending free legal assistance to indigent persons in criminal, civil, labor, administrative and other quasi-judicial cases. (R.A. No. 9406, as amended) • The Integrated Bar of the Philippines, the national organization of all lawyers in the Philippines, through the National Committee on Legal Aid carries out a Legal Aid Program. • NGOs and Law Schools’ Legal Aid Clinics also provide legal aid services to those who need it most.

22. Singapore • Singapore is a city state governed under a democratic multiparty parliamentary. • Its legal system is based on English common law. • Considered as having one of the most sophisticated legal aid frameworks in the world, the Singapore government provides legal aid services for both criminal and civil cases. • No specific constitutional provision on legal aid.

23. Singapore • On 4 April 1956, the Legal Aid and Advice Bill was introduced in the Legislative Assembly. The aim of the Bill was “to make legal aid and advice in the Colony more readily available to persons of limited means.” • All persons facing capital charges in the High Court of Singapore are ensured of legal representation under the Legal Assistance Scheme for Capital Offences (LASCO).

24. Singapore • Persons facing non-capital charges go to the Criminal Legal Aid Scheme (CLAS) administered by the Law Society of Singapore. (Singapore Bar Association) • For those low-income persons who need assistance in civil cases, they may avail of the services of the Legal Aid Bureau (LAB) under the Department of the Ministry of Law. • Singapore also has a number of additional free legal clinics, operated by NGOs, which provide a variety of legal services.

25. Thailand • The Kingdom of Thailand is ruled by a constitutional monarchy and has a parliamentary democratic form of government. • In the 1997 Constitution of Thailand, Article 242 guarantees legal aid provided by the state in both criminal and civil cases. • In the 2007 Constitution, reaffirmed the right to legal aid in Article 81(1) and (5) by particularly: • Following the Policy Directive on Legal Affairs and Justice to “promote the legal aids and legal learning among people” • Support the operations of private organizations that provide the legal aides to people, particularly those affected by the domestic violence.

26. Thailand • The Criminal Procedure Code in 2004, stipulate on the rights to have a lawyer and the rights to the legal aid during all stages of criminal proceedings. • State provides limited legal aid service in criminal cases through the Office of the Attorney General’s Department of Rights and Liberties Protection. (ie. Legal counselling and awareness raising) • Other legal aid providers: professional organizations, such as the Lawyer Society of Thailand, NGOs, and university legal aid centers clinics.

27. Timor-Leste • The Constitution provides that ”[l]egal and judicial aid is of social interest, and lawyers and defenders shall be governed by this principle. (Sec. 135 (1)) • In 2008, Law No. 11/2008 passed to regulate the exercise of the legal aid service and to provide capacity building to the lawyers, including judges and public defenders. • The Government also established Office of Public Defender (OPD) to provide free legal aid service to those who insufficient economic means. (the Organic Law of the Office of Public Defenders)

28. Timor-Leste • In the criminal cases, the victim will automatically be represented by the Public Prosecutor, while the defendant can request a public defender to be his or her lawyer if he or she cannot avail of one. • In a civil case, the persons involved in the dispute will seek a lawyer to bring his or her case to court. If the person does not have enough economic means to pay for lawyer, he or she can seek the assistance of a public defender. • The OPD delivers full legal, judicial and extra-judicial assistance, free of charge, to citizens most in need. • Nongovernment legal aid organizations also provide legal aid services.

29. Vietnam • The Socialist Republic of Vietnam is effectively ruled by the Communist Party of Vietnam. • The Vietnamese legal system is heavily influenced by the French civil law. • “Legal aid” in Vietnam is statutorily defined as “provision of ‘pro bono’ legal services to legal aid beneficiaries in accordance with this Lawto help them protect their legitimate rights and interests and improve their legal understanding as well as their sense of respect for and observance of law; to contribute to law dissemination and education, protect justice, ensure social equity and prevent and restrict disputes and violations of law.” (Vietnam’s Law on Legal Aid)

30. Vietnam • Beneficiaries of legal aid are classified into four groups: • 1) poor people, • 2) people with meritorious services to the revolution • 3) lonely elderly people, disabled people, and helpless children, and • 4) ethnic minority people permanently residing in areas with exceptionally difficult socio-economic conditions.

31. Vietnam • At present, the legal aid system in Vietnam is comprised of the State legal aid centers, non-government law-practicing organizations and legal counseling organizations and various Bar Associations around the country. • The NGOs which provide legal aid services are also required to register in accordance with the Law on legal aid. • National Legal Aid Agency (NLAA) and the Provincial Legal Aid Centers (PLACs) are established at the national and local level who propose establishment of Legal Aid Centres under supervision of some NGOs.

32. Thank you very much!