*LEGAL AID ACT 1971

a judge of a court established by Part IX of the Federal

Constitution, and includes a Sessions Court Judge or a

Magistrate; or

a judge of a Syariah Subordinate Court, a Syariah High Court or a Syariah Appeal Court;

“legal aid” means legal aid services as provided in section 2A;

“mediation” includes—

the undertaking of any activity for the purpose of promoting the discussion and settlement of disputes;

the bringing together of the parties to any dispute for the purpose referred to in paragraph (a), either at the request of one of the parties to the dispute or on the initiative of the

Director General of Legal Aid; and

the follow-up of any matter being the subject of any such discussion or settlement;

“mediation session” means a meeting in accordance with Part VA;

“mediator” means any person who is appointed under section 29F;

“solicitor” means an advocate and solicitor admitted to practise in any part of Malaysia.

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PART IA

LEGAL AID SERVICES

Legal aid services

legal aid in criminal cases as provided in Part III;

legal aid in civil actions as provided in Part IV;

legal advice as provided in Part V;

mediation services as provided in Part VA; and

legal companion services as provided in Part VB.

The legal aid services referred to in subsection (1) may be given to the citizens of Malaysia only.

Registration fee

The registration fee paid under subsection (1) shall be expended for the purposes of administering the legal aid services.

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The Director General shall be assisted by such other person as the Minister may appoint and who shall carry such designation or designations as the Minister may determine.

Notwithstanding any provision of any written law to the contrary, the Director General and any person appointed under subsection (2) shall, for the purposes of this Act, have the right to appear and plead in all courts in Malaysia.

For the purposes of this Act, every person appointed under subsection (2) shall be subject to the general direction and supervision of the Director General, and subject thereto, shall have and exercise all the powers conferred on the Director General by or under this Act, other than those conferred by sections 5 and 27.

Every person appointed under subsection (2) shall, unless he is already a public servant—

The Minister may from time to time issue directions to the

Director General not inconsistent with the provisions of this Act and the Director General shall comply with such directions.

Panels of solicitors

Any solicitor shall be entitled to have his name on the panels or any of them unless there is good reason for excluding him arising out of his conduct when acting or assigned to act for persons receiving legal aid or his professional conduct generally.

Where a solicitor is aggrieved by any decision excluding him

(whether permanently or temporarily) from the panels or any of them, he may appeal against the decision to a High Court and the High Court

(whose decision shall be final) may confirm or quash the decision appealed against or may substitute such decision as it thinks fit.

Subject to subsection 24(2), any solicitor may at any time request the Director General to remove his name from the panels or any of them and the Director General shall comply with such request.

Subject to any regulations made under this Act, the Director

General shall pay to a solicitor investigating and reporting or giving an opinion upon applications for the grant of legal aid or acting for persons receiving legal aid or giving legal advice under the provisions of this Act such fees as may be agreed between the Director General and the solicitor.

The Minister may by order amend or vary the Second Schedule.

Notwithstanding subsection (1) and sections 15 and 16, where the Minister is satisfied that in any particular case of hardship it is in the interests of justice to do so, he may authorize, in writing, the

Director General to give legal aid in connection with any proceedings, whether or not of a description specified in the Second Schedule.

Any person may at any time within fourteen days after the committal under the Criminal Procedure Code [Act 593], charge or conviction before or by any court, apply in writing in the prescribed form to the judge by whom the order was made or before whom the person was charged, or to the Director General, for legal aid for his defence or for the preparation and conduct of his appeal, as the case may be.

Where the Public Prosecutor has lodged notice of appeal against any judgment, sentence or order pronounced by any court, the respondent may make application to the judge by whom the judgment, sentence or order was made, or to the Director General, for legal aid resisting the appeal.

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Every application under this section shall be accompanied by a statutory declaration verifying the facts stated in the application.

The judge before whom the person appears on a charge shall inform such person of his right to apply for legal aid under this Part.

Free legal aid certificate

If the judge or the Director General of Legal Aid is of opinion on the facts brought before him including any report by the Director of

Social Welfare that the person making the application is without adequate means to obtain legal aid and that it is desirable in the interests of justice that such legal aid should be supplied, he shall certify to that effect and the Director General of Legal Aid may thereupon cause arrangements to be made for the defence of that person and payment of the expenses of all material witnesses or for the preparation and conduct of the appeal or for resisting the appeal, as the case may be.

Any doubt whether an applicant’s means are sufficient to enable him to obtain legal aid or whether it is desirable in the interests of justice that he should have free legal aid shall be resolved in favour of the applicant.

The Minister may by order amend or vary the Third Schedule.

Notwithstanding subsection (1) and sections 15 and 16, where the Minister is satisfied that in any particular case of hardship it is in the interests of justice so to do, he may authorize the Director General to give legal aid in connection with any proceedings, whether or not of a description specified in the Third Schedule.

Application for legal aid in civil cases

Every such application shall be in the prescribed form and accompanied by a statutory declaration verifying the facts stated in the application.

Where the person who desires to be granted legal aid is an infant, the application under this section shall be made on behalf of the infant by his guardian.

Where any application is made on behalf of an infant under subsection (2) then—

In subsection (3) of this section the expression “near relative”

means—

make such inquiries as he thinks fit as to the means and conditions of the applicant and as to the merits of the case or refer the application to the Director of Social Welfare for a report on the means of the applicant;

require the applicant to furnish such information and such documents as the Director General may require for the purpose of considering the application;

require the applicant to attend personally;

refer the application or any matter arising out of the application to any solicitor whose name is on the appropriate panel maintained pursuant to section 5 to investigate the facts and make a report thereon or to give any opinion thereon or on any question of law arising out of the application;

take or cause to be taken such steps as may be necessary to conserve the interests of the applicant pending determination of his application;

defray expenses incidental to any of the foregoing matters out of moneys provided for the purpose.

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Grant of legal aid certificates

The Director General may grant to an applicant for legal aid a certificate (hereinafter referred to as a “legal aid certificate”) that the applicant is entitled under this Part to legal aid in connection with any proceedings where—

he is satisfied that the applicant has reasonable grounds for taking, defending, continuing or being a party thereto; and

he is satisfied that the applicant fulfills the criteria and means tests as prescribed by the Minister.

Any person to whom a legal aid certificate is granted under this section may be required to pay to the Director General a contribution in respect of the sums payable on his account.

Grant of legal aid certificate where Director General authorized by Minister to give legal aid

Any person to whom a legal aid certificate is granted under this section may be required to pay to the Director General a contribution in respect of the sums payable on his account.

(Deleted by Act A1188).

If the total contribution made by a person in respect of any proceedings is more than the net liability of the Director General on his account, the excess shall be repaid to him.

Except in so far as regulations may otherwise provide any sums remaining unpaid on account of a person’s contribution in respect of any proceedings and, if the total contribution is less than the net liability of the Director General on his account, a sum equal to the deficiency shall be a first charge on any property (wherever situate)

which is recovered or preserved for that person in the proceedings.

The reference in the preceding subsection to property recovered or preserved for any person, shall include his rights under any settlement or compromise arrived at to avoid or bring to an end the proceedings and any sums recovered by virtue of an order for costs made in his favour in the proceedings (not being sums otherwise payable to the Director General).

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The charge created by subsection (4) of this section on any damages or costs shall not prevent a court allowing them to be set off against other damages or costs in any case where a solicitor’s lien for costs would not prevent it.

References in this section to the net liability of the Director

General on any person’s account in relation to any proceedings refer to the aggregate amount of the sums paid or payable by the Director

General on his account and where the person has been represented in the proceedings by the Director General, such sums as would in the opinion of the Director General have been payable on the person’s account had he been represented by a solicitor assigned to him, in respect of those proceedings and not recouped by sums which are recovered by virtue of an order or agreement for costs made in his favour with respect to those proceedings.

Cancellation of certificate

Where the legal aid certificate so cancelled has been filed in the registry of any court the Director General or any person appointed under subsection 3(2) shall file in court a notification of such cancellation, and, as from the date of filing of such notification, the person to whom the legal aid certificate was granted shall cease to be an aided person.

Upon the filing in court of such notification, then, unless otherwise ordered by a judge of the court in which the litigation is pending, all proceedings in the litigation shall, by virtue of this subsection, be stayed for a period of fourteen days and, subject as aforesaid, during such period, time fixed by or under any law or by or

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under any rules of court, regulations or otherwise for the doing of any act or the taking of any step in the proceedings shall not run.

The time during which proceedings are stayed by virtue of subsection (3) of this section may be reduced or extended by order of a judge of the court in which the litigation is pending.

The Director General or any person appointed under subsection 3(2) shall take such steps as seem to him reasonable or necessary to inform the person to whom a legal aid certificate has been granted of the cancellation of any such certificate.

Application for aid by more than one party

Before taking any other step in the proceedings the Director

General or the solicitor so assigned shall file the legal aid certificate in the registry of the court in which the proceedings are pending or are to be taken and no court fee shall be charged in respect of the filing of the certificate.

Where any legal aid certificate is so filed the aided person—

Subject to sections 18 and 22 no person who, pursuant to any reference under this Act, makes any investigation or report or gives any opinion or who pursuant to any assignment under this Act conducts any proceedings, shall take or agree to take or seek from an aided person any fee, profit or reward (pecuniary or otherwise) in respect thereof.

Deposit in respect of out of pocket expenses

Any amount so deposited shall be used for the payment of such out of pocket expenses and any part of any such amount not so expended shall be refunded.

In any case where the Director General is satisfied that the making of a deposit under subsection (1) of this section would occasion hardship, the Director General may, out of moneys provided for the purpose from time to time, meet any out of pocket expenses (not including office expenses) or make such payments to meet such out of pocket expenses as he may consider necessary.

Any payment so made shall be used only for payment of such out of pocket expenses and any part of such amount not so expended shall be refunded to the Director General of Legal Aid.

Court may order payment of costs by aided person in certain event

In subsection (1) a reference to an “aided person” shall include, in any case where the legal aid certificate has been cancelled before the making of the order, the person who immediately before such cancellation was the aided person.

Where it appears to a court or judge that an aided person has acted improperly in bringing or defending any legal proceedings or in the conduct of them the court or judge may order the aided person to

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pay the costs of the Director General or of the solicitor who acted for him or the costs of the other party, or the costs of both the Director

General or such solicitor and such party.

Where an order is made under subsection (1) or (3) the costs shall be taxed as if the party ordered to pay them were not an aided person.

The costs so ordered to be paid shall, unless otherwise directed by the order, include—

Where the costs of the Director General or the solicitor who acted for the aided person ordered to be paid under subsection (1)

or (3) of this section include any of the fees, charges or sums referred to in subsection (5) of this section, if any amount is recovered by the

Director General in respect of such costs the same shall be applied in the first instance in or towards the satisfaction of such fees, charges or sums.

Legal aid not to discontinue without leave

Any solicitor assigned to act for an aided person shall not discontinue his aid without the leave of the Director General of Legal Aid:

Provided that any solicitor may be represented by any other solicitor.

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Costs

Where any moneys are recovered by an aided person (whether in proceedings or by virtue of a settlement or compromise) he shall be liable to pay to the Director General so much of the moneys so recovered as is recovered in respect of costs.

For the purposes of subsection (2) of this section the moneys recovered in respect of costs shall be deemed to be so much of the total amount so recovered as exceeds the amount (if any) recoverable by the aided person otherwise than as costs.

Where any moneys are recovered by a person to whom a legal aid certificate has been granted under section 15, 16 or 16A (whether in proceedings or by virtue of a settlement or compromise) he shall, subject to the provisions of this subsection, be liable to pay, out of moneys so recovered, to the Director General the aggregate amount of the sums paid or payable by the Director General on his account and, where such person has been represented in the proceedings by the

Director General such sums as would in the opinion of the Director

General have been payable on his account had he been represented by a solicitor assigned to him:

Provided that—

Without prejudice to the generality of subsections (1), (2), (3)

and (4) the expression “costs” shall include—

Where the costs recovered by the Director General under this section include any of the fees, charges or sums referred to in paragraphs (5)(b) and (c), such costs shall be applied, in the first instance, in and towards satisfaction of such fees, charges or sums.

Stay of proceedings upon making of application for legal aid

Where any memorandum is so filed, then, unless otherwise ordered by a judge of the court in which the litigation is pending, all

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proceedings in the litigation shall, by virtue of this section be stayed for a period of fourteen days, and during such period (unless otherwise ordered by any such judge) time fixed by or under any written law or by or under any rules of court, regulations or otherwise for the doing of any act or the taking of any step in the proceedings shall not run:

Provided, however—

The time during which proceedings are stayed by virtue of this section may be reduced or extended by order of a judge of the court in which the litigation is pending.

Appeals by aided persons

Legal advice shall consist of oral advice on legal questions given by the Director General of Legal Aid or a solicitor whose name is on the appropriate panel of solicitors maintained pursuant to section 5 and shall include help in preparing an application for legal aid and in supplying information required in determining financial resources of the applicant but shall not include advice on any law other than the law of Malaysia.

Provisions may be made by regulations for further defining or restricting the questions on which legal advice may be given and for regulating all matters relating to fees, charges and costs in relation to the giving of legal advice.

A person seeking legal advice shall apply to the Director

General of Legal Aid and shall be required to satisfy the Director

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General of Legal Aid that he cannot afford to obtain the legal advice in the ordinary way.

The Minister may by order amend or vary the Fourth Schedule.

PART VA

MEDIATION

Provision of mediation services

Each mediation session shall be conducted by one or more mediators.

Dispute

Without prejudice to subsection (1), the Director General may refer to a mediator any dispute which is the subject of or which may become the subject of or which is related to any proceedings of a description specified in the Third Schedule.

A mediation session may commence or continue whether or not the dispute can be a subject matter or is the subject matter before any court, tribunal or body.

An aided person or persons may be treated as being in dispute on any matter if he or they are not in agreement on the matter whether or not any relevant negotiations are still in progress.

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Mediation to be voluntary

A party to a mediation session may withdraw from the mediation session at any time.

Attendance at, participation in or withdrawal from a mediation session conducted under this Act shall not affect any rights or remedies that a party to a dispute has.

Settlement or agreement to be reduced into writing

Every person appointed under subsection (1) shall be subject to the general direction and supervision of the Director General of Legal

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Aid and shall have no right to appear and plead in any court in

Malaysia.

PART VB

LEGAL COMPANION SERVICES

Provision of legal companion services

The Minister may by order amend the Fifth Schedule.

Qualification for legal companion services

he is a child who is a victim of any offences as specified in the Fifth Schedule; and

he is still a child at the time the proceedings is commenced in court.

The Director General of Legal Aid may grant a legal aid certificate to an applicant who is entitled under this Part to legal companion service upon being satisfied that the applicant has fulfilled the requirements in subsection (1).

Any person to whom a legal aid certificate is granted under subsection (2) may be required to pay to the Director General of Legal

Aid a contribution of a sum as prescribed by the Minister.

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The contribution paid under subsection (3) shall be expended for the purposes of administering the legal aid services.

Legal companion services

to advise the guardian, or protector of an aided person permitted under any written laws on legal matters;

to obtain relevant information relating to charges against any accused person in any criminal proceedings to which the aided person is the victim;

to accompany an aided person in any proceedings in court, and with leave of the court, to speak on behalf of an aided person, if necessary; and

to advise the guardian, or protector of an aided person permitted under any written law on any matter relating to any civil action that can be brought or instituted by an aided person, if any.

The Director General of Legal Aid may at any time discontinue the legal companion services given to the aided person.

the relationship between a person granted legal aid under section 11 and the Director General and the solicitor (if any) assigned to act for him;

the relationship between an applicant for legal aid under this Act and the Director General and the solicitor (if any)

to whom the application is referred;

the relationship between an aided person and the Director

General and the solicitor (if any) assigned to act for him in any proceedings to which a legal aid certificate under section 15, 16 or 16A relates;

the relationship between a person seeking legal advice and the Director General and the solicitor (if any) by whom such advice is given.

Notwithstanding anything contained in subsection (1) the privileges therein referred to shall not arise in relation to any information tendered to the Director General concerning the property or income of the applicant for a legal aid certificate under this Act.

Save as provided by this Act or by regulations made thereunder the rights conferred by this Act on a person receiving legal aid or legal advice under Part III, IV or V, as the case may be, shall not affect the rights or liabilities of other parties to the proceedings or the principles on which the discretion of any court or tribunal is normally exercised.

False statement

to grant or refuse to grant legal aid pursuant to Part III or

IV;

to cancel or refuse to cancel any legal aid certificate pursuant to section 19; or

to certify or refuse to certify pursuant to section 27 that an aided person has good grounds of appeal, shall be final and conclusive and shall not be subject to question or review in any court:

Provided that any person dissatisfied with a decision made under this

Act by any person appointed under subsection 3(2) to refuse to grant legal aid may appeal to the Director General whose decision thereon shall be final and conclusive and shall not be subject to question or review in any court.

Exoneration from liability

the Director General of Legal Aid;

persons appointed under subsection 3(2); or

a mediator appointed under section 29F, shall, if the matter or thing was done in good faith for the purpose of executing this Act and did not involve any fraud or wilful misconduct, subject any of them to any action, liability, claim or demand.

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Regulations

Without prejudice to the generality of subsection (1), regulations made under that subsection may provide for any or all of the following matters: