Legalprofession

The legal profession in Malaysia has approximately 12 000 members with an annual increase of 10-15 per cent.^[612] Unlike in England, there is no division of the legal profession; a practising lawyer is both an advocate and solicitor.

5.1 TheMalaysianBar

The Malaysian Bar is a body corporate established under s 41 of the LPA 1976. It enjoys perpetual succession with a common seal and with power subject to the LPA 1976 to sue and be sued in its corporate name.^[614] Among its declared objects^[615] are the upholding of justice without fear or favour and, on request, to express its view on matters affecting the administration and practice of the law. The Bar also makes rulings and advises on issues relating to matters in practice and professional etiquette.

The MalaysianBarCouncil comprises 36 members elected annuallyto manage the affairs of the Bar. It consists of a president, vice-president, former president, the chairman of each of the 11 State Bar committees, one member elected by each of the 11 State Bars to be its representative to the Bar Council and 12 members elected from throughout Peninsular Malaysia by postal ballot.^[616]

Pursuant to s 46A of the LPA 1976,aBarmembermaynotsitontheBarCouncil unless he or she has been in practice for at least seven years. Bar members who are members of Parliament or state legislatures are also barred. This has been met with dissatisfaction from young lawyers who have, since 2003, campaigned to abolish s 46A on the ground that it violates the fundamental freedom of association rights.^[617]

5.2 Professional independence

Lawyers are duty bound to advance the interests of their clients without fear or favour, and to assist the court in courageously maintaining the rule of law.

Regrettably, it has been observed that lawyers in Malaysia face several threats and obstacles in their advocacy of the independence of the Bar and the judiciary. These difficulties are dealt with under section 7, �Legal culture', and section 8, �New directions and trends', below.

5.3 Legaleducation

Formal legal education in local tertiary institutions began at the Department of Law in the University of Malaya situated in Singapore in 1956.^[619] The current Law Faculty at the University of Malaya was set up in 1972, with an initial intake of 50 students, and the Bachelor of Laws degree is a four-year undergraduate course.^[620] Although there are presently five law faculties offering law courses,^[621] there is a continuing reliance on foreign institutions for the training of lawyers, due to the small intake of law students by the local universities.^[622]

Legal training at local institutions remains relatively traditional, with substan­tive law subjects being divided into compulsory and optional papers.^[623] Compul­sory subjects include the Malaysianlegal system, criminal law, company law, law of contract, law of tort, equity and trust, evidence, and family law, while electives include banking, conflicts of law, cyber law, intellectual property, international trade, sale of goods, and space law.

In response to complaints that graduates are too theoretical, some institutions^[624] have moved towards a more practice-driven methodology by introducing a subject called �Professional Practice, Ethics and Remedy'. Apart from the traditional compulsory law papers, Islamic law subjects such as Islamic jurisprudence and Islamic criminal and civil procedure are offered at Universiti Kebangsaan Malaysia and International Islamic University.^[625]

After completion of the four-year course, law students are required to chamber fornine months with a practising lawyer of at least seven years' standing^[626] before they are called to the Malaysian Bar.

5.4 Legal aid

Legal aid was established by the LegalAidAct 1971 to provide assistance to people who are unable to afford the cost of legal services. This was a progressive step, since adequate legal representation for the poor is a vital aspect of justice.^[628] The law remains in the statute book only if people for whose benefit it was made are unable to enforce their rights according to it.^[629]

Numerous procedural requirements have to be met before legal aid is dis­pensed - a formal written application has to be made to the court before which the applicant is charged. The application is then referred to the Department of Social Welfare for means assessment of the applicant. The court then decides whether the applicant is without adequate means and it is desirable in the inter­ests of justice to grant legal aid.^[630]

Despite its good intentions, the LegalAidAct has been criticised for being far too limited. Presently, the Legal Aid Bureau only focuses on family, Syariah, civil and limited criminal law matters. In criminal proceedings, the Legal Aid Bureau only handles cases where the accused pleads guilty and wishes to make a plea in mitigation. This is inadequate, since it is in the area of criminal law that the poor are most affected.^[631] To this end, the Malaysian Bar has recently called for an amendment of the LegalAidAct that widens the jurisdiction of the Legal Aid Bureaus.^[632]

The Bar also runs its own legal aid scheme, established in 1983. Pursuant to s 42(h)^[633] of the LPA1976, members of the Bar make annual contributions to the legal aid scheme through a Legal Aid Fund, and cases are handled on a voluntary basis.^[634] However, the Bar's resources are limited and incapable of meeting the ever-increasing demand for free legal aid. Since 2007, the Bar has received more than 18 000 cases for lawyers to handle on a voluntary basis.^[635] In response to this overwhelming demand for legal aid, the Bar has recently called on the

Government to play a more active role in the provision of legal aid.^[636]

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