The National Legal Aid Foundation is commonly referred to as ‘YBGK’, which stands for Yayasan Bantuan Guaman Kebangsaan. The YBGK provides free legal assistance and advice for those charged with an offence who lack the means to retain a lawyer.

Anyone applying must first satisfy a means test. The YBGK pays lawyers a standard nominal rate for their work in criminal cases—such as remand and bail applications, trials, and appeals—and covers all criminal offences that do not involve the death penalty.

For offences carrying a death sentence, the High Court assigns counsel to take up the matter. That assigned counsel is also paid a fixed nominal rate to conduct the trial or the appeal, as reported in a 2023 news report. Other legal aid schemes for criminal offences include the Bar Council Legal Aid Centres (‘LAC’), established under the Legal Profession Act 1976, and the Biro Bantuan Guaman (‘BBG’), established pursuant to the Legal Aid Act 1971. However, over time, YBGK has become the main scheme for criminal legal aid. The LAC does not pay lawyers at all for criminal work—just a token travelling sum—whereas YBGK pays a nominal fee and reimburses expenses. Meanwhile, BBG’s scope is limited to guilty pleas and minor offences trials, which tends to be more routine.

Now, all these legal aid schemes understandably focus on making sure lawyers are paid something for handling the cases. The lawyer is absolutely crucial, after all—he alone has the exclusive right to represent an accused person in court. Nobody else can stand up and speak on behalf of a defendant. But what is barely addressed is how legal aid lawyers can access auxiliary support: specifically, funds to pay for experts and specialists needed to properly investigate and defend a case.

This is a real problem, because even though lawyers are vital, we often need more help than the system realises. If we handle a drug case, for instance, we may need an independent chemist to verify or challenge the prosecution’s drug analysis. If we are defending a murder or culpable homicide charge, we might need a forensic medical consultant to pick apart the prosecution’s post-mortem or challenge their cause-of-death narrative. On more technical terrain, a digital forensics expert might be key for a charge of abusing network facilities, an offence under the Communications and Multimedia Act 1998. But we simply don’t have the funds to bring these people on board.

The prosecution, on the other hand, usually has expert witnesses lined up—lab officers, forensic pathologists, police investigators. They have practically an unlimited budget to work with. When they present such evidence, it places us, as lawyers at a disadvantage. Our competency lies in the law, not in specialised scientific or technical domains. If we want to mount a formidable defence, we need experts on our side, too. Yet we lack the funds to hire them privately—especially when our client is on legal aid. The police investigation, for its part, is supposedly neutral, but often it skews towards building the prosecution’s case. Investigators rarely delve deep into an accused person’s version of events or track down alternative leads unless it somehow helps prove the offence.

This disparity creates an obvious imbalance. People talk about ‘equality of arms’ between the defence and prosecution. A legal aid lawyer often struggles with one arm tied behind his back in addition to the the broader systemic challenges he faces that I describe in The Weight of a Criminal Lawyer’s Work. Suffice it to say, even if the lawyer sacrificed their own paltry remuneration (which can be as low as RM60 or RM80 per hearing day in the Magistrates’ Court or Sessions Court, respectively), it still wouldn’t be enough to pay for expert services. And that’s just for offences triable in the subordinate courts; in capital punishment cases, yes, the rate is higher—RM9,000 since 2023, up from RM6,000—but that still barely covers the costs of a multi-week trial, let alone expert fees. These are not market rates.

Hence, we need something like a Legal Aid Defence Experts Panel (‘LADEP’). It would gather a roster of experts relevant to criminal practice—DNA analysts, forensic pathologists, ballistics specialists, data analysts, cybersecurity experts, psychologists, and so on—who can be called on by lawyers handling YBGK or court-appointed cases. This LADEP would be the logical extension of the notion that legal aid isn’t just about having a lawyer stand up in court, but also about giving that lawyer the tools to do the job properly.

First, it assures the public that justice is not skewed only towards those who can afford to hire their own chemists or private investigators. The public sees that a legally aided accused can contest the prosecution’s evidence on a level footing.

Second, it spares legal aid lawyers from having to pick up extra expenses on their own or from having to skimp on expert input because they can’t afford it.

Third, it reduces wrongful convictions and appeals because judges see fully-argued cases on both sides. This, in turn, saves time and resources for the entire judicial system, making verdicts more credible and just.

Fourth, it fosters cross-pollination of ideas between lawyers and professionals in other fields. When experts spend time with defence lawyers, they learn more about how legal defences are structured; lawyers, in turn, learn enough about the technical fields to become more informed counsel.

Critics might say, ‘But won’t LADEP cost too much? YBGK already struggles to pay enough to lawyers.’ While budget is a legitimate concern, we can address it through:

A slight increase in government allocations. We are not talking about paying full commercial rates for every expert; they, like us, can agree to a ‘legal aid’ rate.

Professional and scademic partnerships. Professional bodies or universities may encourage their members or professors to offer pro bono or reduced-fee services as part of corporate social responsibility or academic contribution. It is a change of scenery for them for sure.

Regulate the expert fees. There should be a schedule of fees applicable for their pre-trial, trial and any post-attendance work, if required. Thre coudl be an Expert Fee Remuneration Order, like the Solicitors Remuneration Order 2023 for transactional matters.

Providing some measure of tax relief for those that do legal aid work. As lawyers, we are supposed to be officers of the court, but it’s hard to feel like it. There should be a capped tax relief for legal aid work done and paid for. That would make those of us that contribute to legal aid, at least, feel more like officers of the court. Oh yeah, and free parking at court.

Long-Term Savings. Strengthening the defence function prevents wrongful convictions and reduces drawn-out appeals, which ultimately saves state resources and fosters public faith in the justice system.

Structurally, LADEP could be nested under YBGK in a small administrative unit. The unit’s job would be to compile and vet specialists who are willing to offer their services at these reduced rates. When a legal aid lawyer needs an expert, they would submit a simple application detailing why an expert is necessary. If approved, LADEP matches them with a suitable expert, and YBGK foots the bill from earmarked funds.

This might mean that, just like lawyers currently receive a standard daily rate, experts also receive a basic set fee for their work or basictravel expenses. There should, of course, be guidelines and oversight to prevent misuse, but none of this is rocket science. We already have systems in place to process lawyers’ claims under YBGK; a parallel structure for experts is entirely feasible. Lawyers that are proven to misuse the experts for ulterior motives should be speedily and severely punished, at the very least, by making them liable for the cost of the expert and being barred from LADEP.

By broadening YBGK’s mandate from simply providing a lawyer to also granting that lawyer access to experts, we stop paying lip service to the principle of fair trials and start making it a reality. After all, a robust defence isn’t just about having a person with a law degree in your corner. It’s about ensuring that your lawyer has the necessary support to challenge the prosecution’s version of events, especially when specialised knowledge is crucial.

If properly structured and managed, an LADEP would be a significant leap forward in honouring the principle of equality before the law. We owe it to ourselves, as professionals, and to all those who rely on us for their defence, to ensure that justice is not a matter of personal wealth. It ought to be guided by the strength of the evidence, vigorously examined by both sides, and held to account by the highest standards of fairness. Such a measure would not just serve the accused; it would reaffirm the integrity of our entire legal system.