026e.fm Page 1 Monday, March 27, 2006 2:14 PM
LAWS OF MALAYSIA
REPRINT
Act 26
LEGAL AID ACT 1971
Incorporating all amendments up to 1 January 2006
PUBLISHED BY
THE COMMISSIONER OF LAW REVISION, MALAYSIA
UNDER THE AUTHORITY OF THE REVISION OF LAWS ACT 1968
IN COLLABORATION WITH MALAYAN LAW JOURNAL SDN BHD AND
PERCETAKAN NASIONAL MALAYSIA BHD
2006
026e.fm Page 2 Monday, March 27, 2006 2:14 PM
2
LEGAL AID ACT 1971
Date of Royal Assent
...
...
...
...
...
24 April 1971
Date of publication in the Gazette ... ... ... 29 April 1971
PREVIOUS REPRINTS
First Reprint ...
...
...
...
...
1992
Second Reprint
...
...
...
...
2000
PREPARED FOR PUBLICATION BY
MALAYAN LAW JOURNAL SDN BHD
AND PRINTED BY
PERCETAKAN NASIONAL MALAYSIA BERHAD
KUALA LUMPUR BRANCH
2006
026e.fm Page 3 Monday, March 27, 2006 2:14 PM
3
LAWS OF MALAYSIA
Act 26
LEGAL AID ACT 1971
ARRANGEMENT OF SECTIONS
PART I
PRELIMINARY
Section
1.
Short title
2.
Interpretation
PART II
ADMINISTRATION
3.
Director General of Legal Aid and other persons assisting him
4.
Overall supervision by the Minister
5.
Panels of solicitors
6.
(Deleted)
7.
(Deleted)
8.
(Deleted)
9.
(Deleted)
PART III
LEGAL AID IN CRIMINAL CASES
10.
Application for legal aid in criminal cases
11.
Free legal aid certificate
PART IV
LEGAL AID IN CIVIL ACTIONS
12.
General conditions of legal aid in civil actions
13.
Application for legal aid in civil cases
026e.fm Page 4 Monday, March 27, 2006 2:14 PM
4
Laws of Malaysia
ACT 26
Section
14.
Power of Director General to make inquiries
15.
Grant of legal aid certificates
16.
Additional powers to grant legal aid service
16A.
Grant of legal aid certificate where Director General authorized by
Minister to give legal aid
16B.
Registration fee
17.
(Deleted)
18.
Contributions from aided persons
19.
Cancellation of certificate
20.
Application for aid by more than one party
21.
Endorsement and filing of certificate
22.
Deposit in respect of out of pocket expenses
23.
Court may order payment of costs by aided person in certain event
24.
Legal aid not to discontinue without leave
25.
Costs
26.
Stay of proceedings upon making of application for legal aid
27.
Appeals by aided persons
28.
Rules of court
PART V
LEGAL ADVICE
29.
Right to and nature of legal advice
PART VA
MEDIATION
29A.
Provisions of mediation services
29B.
Dispute
29C.
Mediation to be voluntary
29D.
Settlement or agreement to be reduced into writing
29E.
Confidential communications with a mediator
29F.
Mediator
026e.fm Page 5 Monday, March 27, 2006 2:14 PM
Legal Aid
5
PART VI
GENERAL
Section
30.
Privileges attaching to certain relationships
31.
False statement
31A.
Finality of decision made under Act
31B.
Exoneration from liability
32.
Regulations
33.
Repeal
FIRST SCHEDULE -- (Deleted)
SECOND SCHEDULE
THIRD SCHEDULE
FOURTH SCHEDULE
026e.fm Page 6 Monday, March 27, 2006 2:14 PM
026e.fm Page 7 Monday, March 27, 2006 2:14 PM
7
LAWS OF MALAYSIA
Act 26
LEGAL AID ACT 1971
An Act to make provisions for the grant of legal aid to certain
persons and for matters connected with it.
[Throughout Malaysia--30 April 1971]
BE IT ENACTED by the Seri Paduka Baginda Yang di-Pertuan
Agong with the advice and consent of the Dewan Negara and
Dewan Rakyat in Parliament assembled, and by the authority of
the same, as follows:
PART I
PRELIMINARY
Short title
1.
This Act may be cited as the Legal Aid Act 1971.
Interpretation
2.
In this Act, unless the context otherwise requires--
"aided person" means a person who has been granted a certificate
that he is entitled to legal aid under this Act and, where such a
person is an infant, includes his guardian;
"court" means a court established by or under Part IX of the
Federal Constitution, the Syariah Subordinate Court, the Syariah
High Court and the Syariah Appeal Court;
"Director General of Legal Aid" or "Director" means the
Director General of Legal Aid appointed under section 3;
"Director of Social Welfare" means the person for the time
being executing the duties of the Director of Social Welfare and
includes such other officers as may be vested with the powers or
as may be exercising the functions of the Director of Social
Welfare in a State;
026e.fm Page 8 Monday, March 27, 2006 2:14 PM
8
Laws of Malaysia
ACT 26
"guardian" in relation to an infant, includes without prejudice
to the generality of the expression, such person as the Director
General considers might properly be appointed to be the next
friend or guardian ad litem of the infant;
"judge" means--
(a)
a judge of a court established by Part IX of the Federal
Constitution, and includes a Sessions Court Judge or a
Magistrate; or
(b)
a judge of a Syariah Subordinate Court, a Syariah
High Court or a Syariah Appeal Court;
"mediation" includes--
(a)
the undertaking of any activity for the purpose of
promoting the discussion and settlement of disputes;
(b)
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
(c)
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.
PART II
ADMINISTRATION
Director of Legal Aid and other persons assisting him
3.  (1) The Minister may appoint from amongst members of the
Judicial and Legal Service of the Federation a person to be or to
act as a Director General of Legal Aid.
(2) The Director General shall be assisted by such other
person as the Minister may appoint and who shall carry such
designation as the Minister may determine.
026e.fm Page 9 Monday, March 27, 2006 2:14 PM
Legal Aid
9
(3) 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.
(4) For the purposes of this Act, every person appointed under
s u b s e c t i o n (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.
(5) Every person appointed under subsection (2) shall, unless
he is already a public servant--
(a)
receive such remuneration as the Yang di-Pertuan
Agong may determine;
(b)
be deemed to be a public servant within the meaning
of the Penal Code [Act 574].
Overall supervision by the Minister
4.
(1) The Director General shall be responsible to the Minister.
(2) 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
5.  (1) The Director General of Legal Aid shall prepare and
maintain panels of solicitors willing to investigate, report and give
an opinion upon applications for the grant of legal aid, to act for
persons receiving legal aid or to give legal advice under the
provisions of this Act; and there may be separate panels for
different purposes and for different courts.
(2) 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.
(3) 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
026e.fm Page 10 Monday, March 27, 2006 2:14 PM
10
Laws of Malaysia
ACT 26
the High Court (whose decision shall be final) may confirm or
q u a s h the decision appealed against or may substitute such
decision as it thinks fit.
(4) 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.
(5) Subject to any regulations made under this Act the
D i r e c t o r 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
a d v i c e under the provisions of this Act such fees as may be
agreed between the Director General and the solicitor.
6.
(Deleted by Act A578).
7.
(Deleted by Act A1188).
8.
(Deleted by Act A1188).
9.
(Deleted by Act A1188).
PART III
LEGAL AID IN CRIMINAL CASES
Application for legal aid in criminal cases
10. (1) Criminal proceedings in connection with which legal aid
may be given are any proceedings of a description specified in the
Second Schedule.
(2) The Minister may by order amend or vary the Second
Schedule.
(2A) Notwithstanding subsection (1) and sections 15 and 16,
w h e r e 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.
026e.fm Page 11 Monday, March 27, 2006 2:14 PM
Legal Aid
11
(3) Any person may at any time within fourteen days after the
committal under the Criminal Procedure Code [Act 593], charge
o r 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.
(4) 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.
(5) Every application under this section shall be accompanied
b y a statutory declaration verifying the facts stated in the
application.
(6) 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
11. (1) Where application is made under section 10 the judge or
the Director General of Legal Aid may refer the application to the
Director of Social Welfare for a report on the means of the
applicant.
(2) If the judge or the Director General of Legal Aid is of
opinion on the facts brought before him including any report by
t h e 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
b e 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.
(3) 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.
026e.fm Page 12 Monday, March 27, 2006 2:14 PM
12
Laws of Malaysia
ACT 26
PART IV
LEGAL AID IN CIVIL ACTIONS
General conditions of legal aid in civil actions
12. (1) Civil proceedings in connection with which legal aid
may be given are any proceedings of a description specified in the
Third Schedule.
(2) The Minister may by order amend or vary the Third Schedule.
(3) Notwithstanding subsection (1) and sections 15 and 16,
w h e r e the Minister is satisfied that in any particular case
o f 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
13. (1) (a) Any person who whether in his own right or in a
representative capacity desires to be granted legal aid under this
Part shall make application in that behalf to the Director General
of Legal Aid.
(b) Every such application shall be in the prescribed form
and accompanied by a statutory declaration verifying the facts
stated in the application.
(2) 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.
(3) Where any application is made on behalf of an infant
under subsection (2)--
(a)
a reference in section 14, paragraph 15(2)(a) or
16(1)(a) to an applicant shall be construed as a
reference to the guardian and the infant jointly or to
either of them severally; and
(b)
a reference in paragraph 15(2)(b) or 16(1)(b) to an
applicant shall, in any case where the infant is
unmarried and the guardian is a near relative (as
defined in subsection (4) of this section) of the infant,
026e.fm Page 13 Monday, March 27, 2006 2:14 PM
Legal Aid
13
be construed as a reference to both the guardian and
the infant and in every other case shall be construed as
a reference to the infant only.
(4) In subsection (3) of this section the expression "near
relative" means--
(i)
in the case of a legitimate child, the father or the
mother;
(ii)
in the case of an adopted child, an adopting parent;
(iii)
in the case of an illegitimate child, the mother.
Power of Director General to make inquiries
14. Where an application is made under section 13 the Director
General of Legal Aid may--
(a)
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;
(b)
require the applicant to furnish such information and
such documents as the Director General may require
for the purpose of considering the application;
(c)
require the applicant to attend personally;
(d)
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;
(e)
take or cause to be taken such steps as may be
necessary to conserve the interests of the applicant
pending determination of his application;
(f)
defray expenses incidental to any of the foregoing
matters out of moneys provided for the purpose.
Grant of legal aid certificates
15. (1) (Deleted by Act A578).
026e.fm Page 14 Monday, March 27, 2006 2:14 PM
14
Laws of Malaysia
ACT 26
(2) The Director General may grant to an applicant for legal
a i d 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--
(a)
he is satisfied that the applicant has reasonable
grounds for taking, defending, continuing or being a
party thereto; and
(b)
he is satisfied that the applicant possessed financial
resources which do not exceed twenty-five thousand
ringgit per annum.
Additional powers to grant legal aid service
16. (1) Notwithstanding section 15 the Director General may
grant to an applicant a legal aid certificate in connection with any
proceedings where--
(a)
he is satisfied that the applicant has reasonable
grounds for taking, defending, continuing or being a
party thereto; and
(b)
he is satisfied that the applicant possesses financial
resources which exceed twenty-five thousand ringgit
per annum but do not exceed thirty thousand ringgit
per annum.
(2) 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
16A. (1) Notwithstanding sections 15 and 16, the Director
General shall grant to an applicant for legal aid a legal aid
certificate in connection with any proceedings where the Minister
has authorized the Director General to give legal aid under
subsection 12(3).
(2) 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.
026e.fm Page 15 Monday, March 27, 2006 2:14 PM
Legal Aid
15
Registration fee
16B. Any person who has qualified for legal aid under section 15,
16 or 16A shall be required to pay to the Director General a sum
of two ringgit as registration fee.
17. (Deleted by Act A1188).
Contributions from aided persons
18. (1) Any person to whom a legal aid certificate is granted
under section 16 or 16A in respect of any proceedings may be
required to make any contribution in a lump sum or by instalment.
(2) (Deleted by Act A1188).
(3) 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.
(4) 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.
(5) 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).
(6) 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.
(7) References in this section to the net liability of the
D i r e c t o r General on any person's account in relation to any
proceedings refer to the aggregate amount of the sums paid or
026e.fm Page 16 Monday, March 27, 2006 2:14 PM
16
Laws of Malaysia
ACT 26
payable by the Director General on his account and where the
person has been represented in the proceedings by the Director
G e n e r a l , 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
19. (1) The Director General of Legal Aid or any person
appointed under subsection 3(2) may, at any time, and whether or
not application has been made for the purpose, cancel any legal
aid certificate issued under section 15 or 16 or, where so
authorized by the Minister, under section 16A, and subject to
subsection (2) of this section the person to whom the certificate
was granted shall, as from the date of such cancellation, cease to
be an aided person.
(2) 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
o f 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.
(3) 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 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.
(4) 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.
(5) 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.
026e.fm Page 17 Monday, March 27, 2006 2:14 PM
Legal Aid
17
Application for aid by more than one party
20. If, in relation to any proceedings to which a person who
has made an application for legal aid under this Part or an aided
person is a party, any other party makes application for legal aid
under this Part the provisions of this Act shall apply to both such
parties:
P r o v i d e d that the Director General of Legal Aid shall not
himself act for either such party but shall assign a solicitor to be
selected by the aided person, if he so desires, or otherwise by the
D i r e c t o r General from the appropriate panel of solicitors
maintained pursuant to section 5 to act for each aided person.
Endorsement and filing of certificate
21. (1) Where a legal aid certificate is granted pursuant to
section 15, 16 or 16A the Director General of Legal Aid may act
for the aided person or may assign a solicitor to be selected by the
aided person, if he so desires, or otherwise by the Director General
from the appropriate panel maintained pursuant to section 5 so to
act, and in such case shall endorse on the legal aid certificate the
name of the solicitor so assigned:
Provided that in any case where a solicitor is assigned to act
after such certificate is filed in court, or in any case where a new
assignment is made in lieu of a solicitor assigned previously, the
D i r e c t o r General shall not be required to endorse on the
c e r t i f i c a t e the name of the solicitor so assigned, or newly
assigned, as the case may be, but may, instead, give notice of
such assignment or new assignment by letter to the proper officer
of the court in which proceedings are pending.
(2) 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.
(3) Where any legal aid certificate is so filed the aided
person--
(a)
shall not be liable in respect of any proceedings to
which the certificate relates for court fees or for such
fees payable for the service of process or for any fees
026e.fm Page 18 Monday, March 27, 2006 2:14 PM
18
Laws of Malaysia
ACT 26
due to the Sheriff in connection with the execution of
process;
(b)
shall be entitled to be supplied free of charge with a
copy of the judge's notes of evidence in any proceedings
to which the certificate relates; and
(c)
shall not, except where express provision is made in
this Act, be liable for costs to any other party in any
proceedings to which the certificate relates.
(4) 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
f r o m an aided person any fee, profit or reward (pecuniary or
otherwise) in respect thereof.
Deposit in respect of out of pocket expenses
22. (1) The Director General of Legal Aid may require any
applicant for legal aid under this Part or any person to whom a
legal aid certificate has been granted under section 15, 16 or 16A
to deposit with him such amounts at such times as the Director
General may think fit to be used in or towards meeting out of
pocket expenses (not including office expenses) incurred in
connection with the application or with any proceedings to which
the application or the legal aid certificate relates.
(2) 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.
(3) In any case where the Director General is satisfied that the
making of a deposit under subsection (1) of this section would
o c c a s i o n hardship, the Director General may, out of moneys
p r o v i d e d 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.
(4) 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.
026e.fm Page 19 Monday, March 27, 2006 2:14 PM
Legal Aid
19
Court may order payment of costs by aided person in certain
event
23. (1) Where it appears to a court or judge that a legal aid
certificate granted under section 15 or 16 has been obtained by
fraud or misrepresentation the court or judge may order the aided
person to 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.
(2) In subsection (1) a reference to an "aided person" shall
i n c l u d e , in any case where the legal aid certificate has been
c a n c e l l e d before the making of the order, the person who
immediately before such cancellation was the aided person.
(3) Where it appears to a court or judge that an aided person
h a s 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 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.
(4) 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.
(5) The costs so ordered to be paid shall, unless otherwise
directed by the order, include--
(a)
fees and charges of the nature referred to in
paragraphs 21(3)(a) and (b); and
(b)
any sums which, pursuant to subsection 22(3) were
expended by the Director General in meeting out of
pocket expenses or were paid by the Director General
for that purpose.
(6) Where the costs of the Director General or the solicitor
w h o acted for the aided person ordered to be paid under
s u b s e c t i o n (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.
026e.fm Page 20 Monday, March 27, 2006 2:14 PM
20
Laws of Malaysia
ACT 26
Legal aid not to discontinue without leave
24. (1) An aided person shall not without the leave of the
Director General discharge any solicitor assigned to act under this
Part for him.
(2) 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.
Costs
25. (1) Where proceedings in which an aided person is a party
are taken in any court, the court shall make, in favour of the aided
person, the like order for costs (except against another aided
person) as that court would have made in favour of the aided
person had he not been an aided person, and in proceedings in
which costs follow the event an aided person shall (except against
another aided person) be entitled to costs in like manner as if he
were not an aided person, notwithstanding that no amount is or
will be payable by the aided person, or that the costs are in excess
of the amount which is or will be payable by the aided person.
(2) Where any moneys are recovered by an aided person
( w h e t h e r 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.
(3) 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.
(4) 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
026e.fm Page 21 Monday, March 27, 2006 2:14 PM
Legal Aid
21
a s 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--
(a)
where the amount recovered does not exceed one
thousand ringgit, no sum shall be payable by the aided
person under this subsection;
(b)
where the amount recovered exceeds one thousand
ringgit, the sum payable by the aided person under this
subsection shall not exceed--
(i)
one-fourth of the amount recovered; or
(ii)
the difference between the amount received
a n d the amount of one thousand ringgit
whichever is the less.
(5) Without prejudice to the generality of subsections (1), (2),
(3) and (4) the expression "costs" shall include--
(a)
counsel's fees whether or not the same have been paid;
(b)
fees and charges of the nature referred to in
paragraphs 21(3)(a) and (b); and
(c)
any sums which, pursuant to subsection 22(3), are
expended by the Director General in meeting out of
pocket expenses or are paid by the Director General
for that purpose.
(6) 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
i n s t a n c e , in and towards satisfaction of such fees, charges or
sums.
Stay of proceedings upon making of application for legal aid
26. (1) Where litigation has been instituted and any party makes
an application for legal aid under this Act the Director General
shall, as soon as practicable after the application is made,
notify the other party or each of the other parties, and file in the
court in which the litigation is pending a memorandum of such
notification and no fee shall be charged in respect of the filing of
the memorandum.
026e.fm Page 22 Monday, March 27, 2006 2:14 PM
22
Laws of Malaysia
ACT 26
(2) Where any memorandum is so filed, 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 section be
s t a y e d for a period of fourteen days, and during such period
(unless otherwise ordered by any such judge) time fixed by or
u n d e r 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--
(a)
that the filing of the memorandum shall not operate to
prevent the making of--
(i)
an interlocutory order for an injunction or for
the appointment of a receiver or manager or
receiver and manager;
(ii)
an order to prevent the lapse of a caveat
against dealings with land; or
(iii)
any other order which, in the opinion of a
j u d g e of the court in which the litigation is
pending is necessary to prevent an
irremediable injustice;
(b)
that, unless otherwise ordered by a judge of the court
in which the litigation is pending, the filing of the
memorandum shall not operate to prevent the
institution or continuance of proceedings to obtain,
enforce or otherwise carry into effect any such order
as is mentioned in paragraph (a) of this proviso or a
decree to the like effect.
(3) 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
27. Where a legal aid certificate granted pursuant to section 15,
16 or 16A has been filed in any court and the proceedings to which
the certificate relates have been heard in that court and the aided
person desires to prosecute any appeal or proceedings in the
nature of an appeal therefrom, he shall not be entitled to prosecute
such appeal or proceedings in the nature of an appeal as an aided
person unless, in a case where the certificate was granted pursuant
to section 16A, the Minister, and in all other cases, the Director
026e.fm Page 23 Monday, March 27, 2006 2:14 PM
Legal Aid
23
General, is satisfied that the aided person has good grounds of
appeal and so certifies.
Rules of court
28. Where it is necessary or expedient so to do, the Rules
Committee may make rules regulating the practice and procedure
of any court in which proceedings may be taken by an aided
person.
PART V
LEGAL ADVICE
Right to and nature of legal advice
29. (1) Subject to this Part, legal advice on any matter specified
in the Second, Third and Fourth Schedules shall be available to
persons resident and present in Malaysia.
(2) 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.
(3) 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.
(4) A person seeking legal advice shall apply to the Director
General of Legal Aid and shall be required--
(a)
to satisfy the Director General that he cannot afford to
obtain it in the ordinary way; and
(b)
to pay to the Director General a fee of two ringgit or
such other fee as may be prescribed.
(5) The Minister may by order amend or vary the Fourth
Schedule.
026e.fm Page 24 Monday, March 27, 2006 2:14 PM
24
Laws of Malaysia
ACT 26
PART VIA
MEDIATION
Provision of mediation services
29A. (1) The Minister may authorize the Director General of
Legal Aid to provide mediation services to aided persons.
(2) Each mediation session shall be conducted by one or more
mediators.
Dispute
29B. (1) Any person who is a party to a 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 may refer the dispute to a mediator.
(2) Without prejudice to subsection (1), the Director General
may refer to a mediator any dispute which is the subject of or
w h i c h may become the subject of or which is related to any
proceedings of a description specified in the Third Schedule.
(3) 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.
(4) 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
m a t t e r whether or not any relevant negotiations are still in
progress.
Mediation to be voluntary
29C. (1) Attendance at and participation in a mediation session is
voluntary.
(2) A party to a mediation session may withdraw from the
mediation session at any time.
(3) 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.
026e.fm Page 25 Monday, March 27, 2006 2:14 PM
Legal Aid
25
Settlement or agreement to be reduced into writing
29D. No settlement or agreement shall be binding on the parties to
a mediation session unless it has been reduced into writing and
signed by the parties to the settlement or agreement.
Confidential communications with a mediator
29E. No person shall be compelled to disclose to the court any
confidential communication which has taken place between that
person and a mediator, if the mediation process fails, unless that
person offers himself as a witness, in which case that person may
be compelled to disclose only such communications as may
appear to the court to be necessary to be known in order to explain
any evidence which he has given.
Mediator
29F. (1) The Minister may appoint any person as a mediator for
the purpose of this Part.
(2) Every person appointed under subsection (1) shall be
subject to the general direction and supervision of the Director
General of Legal Aid and shall have no right to appear and plead
in any court in Malaysia.
PART VI
GENERAL
Privileges attaching to certain relationships
30. (1) The like privileges and rights as those which arise from
the relationship of client and advocate and solicitor acting in his
professional  employment  shall  arise  from  the  following
relationship, that is to say:
(a)
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;
(b)
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;
026e.fm Page 26 Monday, March 27, 2006 2:14 PM
26
Laws of Malaysia
ACT 26
(c)
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;
(d)
the relationship between a person seeking legal advice
and the Director General and the solicitor (if any) by
whom such advice is given.
(2) Notwithstanding anything contained in subsection (1) the
privileges therein referred to shall not arise in relation to any
i n f o r m a t i o n tendered to the Director General concerning the
property or income of the applicant for a legal aid certificate
under this Act.
(3) 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
31. If any person seeking or receiving legal aid or advice in
furnishing any information in his application knowingly makes
any false statement or false representation, he shall be liable on
conviction to a fine not exceeding one thousand ringgit or to
imprisonment for a term not exceeding six months or to both.
Finality of decision made under Act
31A. Any decision made under this Act--
(a)
to grant or refuse to grant legal aid pursuant to Part III
or IV;
(b)
to cancel or refuse to cancel any legal aid certificate
pursuant to section 19; or
(c)
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:
026e.fm Page 27 Monday, March 27, 2006 2:14 PM
Legal Aid
27
P r o v i d e d that any person dissatisfied with a decision made
under this Act by any person appointed under subsection 3(2) to
r e f u s e 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
31B. No matter or thing done or omitted to be done by--
(a)
the Director General of Legal Aid;
(b)
persons appointed under subsection 3(2); or
(c)
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.
Regulations
32. (1) The Minister may make regulations not inconsistent with
the provisions of this Act prescribing anything which may be
prescribed (other than for the purpose of regulating the practice
and procedure of any court).
(2) Without prejudice to the generality of subsection (1),
regulations made under that subsection may provide for any or all
of the following matters:
(a)
fees, charges and costs in relation to proceedings to
which an aided person or a person to whom legal aid
is supplied under this Act is a party and the remission
of any such fees or charges;
(b)
the recovery of sums due in respect of legal aid and for
making effective the charge created by this Act on
property recovered or preserved for a person receiving
legal aid, including provision--
(i)
for the enforcement of any order or agreement
for costs made in favour of a person who has
received legal aid; and
026e.fm Page 28 Monday, March 27, 2006 2:14 PM
28
Laws of Malaysia
ACT 26
(ii)
for making a solicitor's right to payment
wholly or partly dependent on his performance
of any duties imposed on him by regulation
made for the purposes of this paragraph;
(c)
any  provision  necessary  to  meet  the  special
circumstances where--
(i)  a person seeks legal aid in a matter of special
urgency;
(ii)  a person begins to receive legal aid after
h a v i n g consulted a solicitor in the ordinary
way with respect to the same matter, or ceases
t o receive legal aid before the matter in
question is finally settled; and
(iii)  there is any relevant change of circumstances
while a person is receiving legal aid;
(ca) to resulate the practice and procedure of mediation;
and
(d)
any other matter for the purpose of carrying into effect
any of the provisions of this Act.
Repeal
33. The Emergency (Essential Powers) Ordinance No. 39, 1970
[P.U.(A)257/1970] is hereby repealed.
FIRST SCHEDULE
(Deleted by Act A1188)
026e.fm Page 29 Monday, March 27, 2006 2:14 PM
Legal Aid
29
SECOND SCHEDULE
[Section 10]
DESCRIPTION OF CRIMINAL PROCEEDINGS
1.  All criminal proceedings in which the accused not being represented by counsel
pleads guilty to the charge and wishes to make a plea in mitigation in respect thereof.
2.
Criminal proceedings under the Child Protection Act 1991 [Act 468] *.
3.
Criminal proceedings under the Minor Offences Act 1955 [Act 336].
THIRD SCHEDULE
[Section 12]
DESCRIPTION OF CIVIL PROCEEDINGS
1.  Proceedings under the Married Women and Children (Maintenance) Act 1950
[Act 263].
2.  Proceedings under the Maintenance Orders (Facilities for Enforcement) Act
1949 [Act 34] for a provisional order.
3.  Proceedings under the Married Women and Children (Enforcement of
Maintenance) Act 1968 [Act 356].
4.  Proceedings relating to maintenance, custody, divorce and harta sepencarian in
courts administering Muslim law where any person or advocate and solicitor may be
authorized to appear.
5.
Rights and liabilities under the Workmen's Compensation Act 1952 [Act 273].
6.  Rights and liabilities under the Padi Cultivators (Control of Rent and Security of
Tenure) Act 1967 [Act 528].
7.
Rights and liabilities under the Small Estates (Distribution) Act 1955 [Act 98].
8.  Rights and liabilities in respect of civil action for damages arising out of
accidents involving motor vehicles within the meaning of the Road Transport Act
1987 [Act 333].
* NOTE--Applicable only to Peninsular Malaysia and the Federal Territory of Labuan--
see P.U.(B)77/1992. The Child Protection Act 1991 has been repealed by the Child
Act 2001 [Act 611].
026e.fm Page 30 Monday, March 27, 2006 2:14 PM
30
Laws of Malaysia
ACT 26
9.
Rights and liabilities under the Moneylenders Act 1951 [Act 400].
10. Rights and liabilities in respect of proceedings for divorce and custody.
11. Rights and liabilities in respect of proceedings relating to tenancy.
12. Rights and liabilities under the Hire-Purchase Act 1967 [Act 212].
13. Applications for Probate and Letters of Administration.
14. Rights and liabilities under the Adoption Act 1952 [Act 257].
15. Consumer claims.
FOURTH SCHEDULE
[Subsection 29(1)]
DESCRIPTION OF MATTERS IN RESPECT OF WHICH
LEGAL ADVICE MAY BE GIVEN
Legal advice on all matters.
026e.fm Page 31 Monday, March 27, 2006 2:14 PM
31
LAWS OF MALAYSIA
Act 26
LEGAL AID ACT 1971
LIST OF AMENDMENTS
Amending law
Short title
In force from
P.U.(A 214/1971
Legal Aid (Amendment) Order
25-06-1971
1971
P.U.(A)293/1972
Legal Aid (Amendment) Order
22-09-1972
1972
P.U.(A)104/1973
Legal Aid (Amendment) Order
07-04-1973
1973
P.U.(A)46/1975
Legal Aid (Amendment) Order
01-03-1975
1975
P.U.(A)27/1982
Legal Aid (Amendment) Order
01-02-1982
1982
20-01-1984
Act A578
Legal Aid (Amendment) Act
1984
Act A653
Legal Aid (Amendment) Act
16-05-1986
1986
Act A911
Legal Aid (Amendment) Act
17-02-1995
1995
Act A1188
Legal Aid (Amendment) Act 15-07-2003:
2003
for section 2,
paragraphs 3(a), (b),
(c) and (f) and
section 12
[P.U.(B)242/2003]
01-06-2005:
other sections
[P.U.(B)177/2005]
026e.fm Page 32 Monday, March 27, 2006 2:14 PM
32
LAWS OF MALAYSIA
Act 26
LEGAL AID ACT 1971
LIST OF SECTIONS AMENDED
Section
Amending authority
In force from
2
Act A578
20-01-1984
Act A653
16-05-1986
Act A911
17-02-1995
Act A1188
15-07-2003;
01-06-2005
3
Act A578
20-01-1984
Act A653
16-05-1986
Act A1188
15-07-2003;
01-06-2005
4
Act A653
16-05-1986
Act A1188
15-07-2003
5
Act A1188
15-07-2003
6
Act A578
20-01-1984
7
Act A653
16-05-1986
Act A1188
01-06-2005
8
Act A578
20-01-1984
Act A653
16-05-1986
Act A1188
01-06-2005
9
Act A578
20-01-1984
Act A1188
01-06-2005
026e.fm Page 33 Monday, March 27, 2006 2:14 PM
Legal Aid
33
Section
Amending authority
In force from
10
Act A578
20-01-1984
Act A653
16-05-1986
Act A1188
15-07-2003;
01-06-2005
11
Act A578
20-01-1984
Act A1188
15-07-2003
12
Act A578
20-01-1984
Act A653
16-05-1986
Act A1188
15-07-2003
13
Act A1188
15-07-2003;
01-06-2005
14
Act A578
20-01-1984
Act A1188
15-07-2003
15
Act A578
20-01-1984
Act A911
17-02-1995
Act A1188
15-07-2003;
01-06-2005
16
Act A578
20-01-1984
Act A911
17-02-1995
Act A1188
15-07-2003;
01-06-2005
16A
Act A578
20-01-1984
Act A653
16-05-1986
Act A1188
15-07-2003
16B
Act A911
17-02-1995
Act A1188
15-07-2003
17
Act A578
20-01-1984
Act A911
17-02-1995
026e.fm Page 34 Monday, March 27, 2006 2:14 PM
34
Laws of Malaysia
ACT 26
Section
Amending authority
In force from
Act A1188
01-06-2005
18
Act A578
20-01-1984
Act A1188
15-07-2003;
01-06-2005
19
Act A578
20-01-1984
Act A653
16-05-1986
Act A1188
15-07-2003
20
Act A1188
15-07-2003
21
Act A578
20-01-1984
Act A1188
15-07-2003
22
Act A578
20-01-1984
Act A1188
15-07-2003
23
Act A1188
15-07-2003
24
Act A1188
15-07-2003
25
Act A578
20-01-1984
Act A1188
15-07-2003
26
Act A1188
15-07-2003
27
Act A578
20-01-1984
Act A653
16-05-1986
Act A1188
15-07-2003
29
Act A653
16-05-1986
Act A911
17-02-1995
Act A1188
15-07-2003;
01-06-2005
29A29F
Act A1188
01-06-2005
30
Act A578
20-01-1984
Act A1188
15-07-2003
026e.fm Page 35 Monday, March 27, 2006 2:14 PM
Legal Aid
35
Section
Amending authority
In force from
31A
Act A578
20-01-1984
Act A1188
15-07-2003
Act A1188
01-06-2005
31B
32
Act A1188
01-06-2005
First Schedule
Act A578
20-01-1984
Act A1188
01-06-2005
Second Schedule
P.U.(A)104/1973
07-04-1973
P.U.(A)27/1982
01-02-1982
Third Schedule
P.U.(A)214/1971
25-06-1971
P.U.(A)293/1972
22-09-1972
P.U.(A)104/1973
07-04-1973
P.U.(A)46/1975
01-03-1975
P.U.(A)27/1982
01-02-1982
Fourth Schedule
P.U.(A)214/1971
25-06-1971
P.U.(A)293/1972
22-09-1972
P.U.(A)104/1973
07-04-1973
P.U.(A)46/1975
01-03-1975
P.U.(A)27/1982
01-02-1982