Help to provide legal aid for the poor

I REFER to the comment by the Chief Judge for Sabah and Sarawak Tan Sri Richard Malanjum as reported in the article “Lawyers warned not to overcharge their clients” (The Star, Jan 7), and I share his concern.

The practice he referred to is not uncommon in the rest of Malaysia as well. In this connection, I wish to relate something that came to my knowledge in the course of my legal career.

A client of mine, a Malaysian of Sri Lankan origin, wanted to dispose of the properties in Sri Lanka he had inherited from his ancestors. I prepared a Power of Attorney for him, giving the power to his relatives to do the needful.

In such cases, a lawyer has to obtain the endorsement of our own Foreign Affairs Ministry as well as the Sri Lanka High Commission in Malaysia. At that time, a civil war was raging in Sri Lanka and the north of the country was under the administration of the “Tamil Tigers”.

The Sri Lanka High Commission duly informed me that the north of the country was not under their administration then.

I informed them that we would submit the Power of Attorney to Colombo for further endorsement and send it to the relevant court functioning in the north.

In the process, I also learnt that the Tamil Tigers’ administration had their own judiciary and this Power of Attorney had to be endorsed by their high court before the attorney could exercise the power in the north.

I had the opportunity too to find out how their legal system worked. What interested me was the way the lawyers were paid. They had a system of proctors and advocates corresponding to solicitors and counsels in England. The scale of fees for proctors and advocates was laid down by law.

The fee depended on the seniority of the proctor or advocate and the complexity of the case. The client could choose any lawyer he desired but the fee had to be paid to the high court which would in turn pay the lawyer. The same system applied in the lower courts.

I was told that some of the lawyers and members of the public are reputed to have praised the system and commented that it ought to be adopted country-wide. The Tamil Tigers were defeated and the system of paying lawyers’ fees is no longer in vogue.

In our own country, the poor are generally denied the opportunity to pursue their claims in court as well as to stand up for their rights under the law.

There was a provision in our High Court for paupers to be given special treatment. The old Order 15 Rule 18 of the Rules of the High Court 1980 stated that any indigent person before commencing or defending any action or instituting any other proceeding in the court or before a judge could petition for leave to sue, defend or proceed as a pauper. If the court accepted him as a pauper, after due enquiry no court fees would be charged.

The pauper’s solicitor must not take or seek to obtain from the pauper any fee, profit or reward for the conduct of the proceedings in the cause or matter unless he had acceptable reasons for not proceeding. A pauper’s solicitor must not refuse to act unless he satisfies the court that he has a good reason for his refusal. However, if the pauper recovers any money from the action by way of judgment and/or cost, he must pay the court cost and also the solicitor’s cost.

These provisions have unfortunately been dropped in the Amendments to the High Court Rules in 2012.

At least this provision could have been modified to make it more effective so that the intended persons can avail themselves of it without much problem. Perhaps the Bar Council would like to study this problem and find a solution which is fair and reasonable to the litigants concerned.

DATUK RAJASINGAM MURUGASU

Petaling Jaya