LAWS OF MALAYSIA REPRINT Act 359 GOVERNMENT PROCEEDINGS ACT 1956 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 PERCETAKAN NASIONAL MALAYSIA BHD 2006 2 Laws of Malaysia ACT 359 GOVERNMENT PROCEEDINGS ACT 1956 First enacted ... ... ... ... ... ... 1956 (Ord. No. 58 of 1956) Revised ... ... ... ... ... ... ... 1988 (Act 359 w.e.f. 1 December 1988) PREVIOUS REPRINT First Reprint ... ... ... ... ... 2001 3 Government Proceedings LAWS OF MALAYSIA Act 359 GOVERNMENT PROCEEDINGS ACT 1956 ARRANGEMENT OF SECTIONS PART I PRELIMINARY Section 1. Short title and application 2. Interpretation PART II SUBSTANTIVE LAW 3. Right of the Government to sue 4. Claims enforceable by proceedings against Government 5. Liability of the Government in tort 6. Limits of liability of the Government 7. Savings of acts done in exercise of public duties 8. Public nuisances 9. Public, religious, social or charitable trusts 10. Priority of Government debts 11. Sureties to be sued as principals 12. Provisions as to industrial property 13. Application of law as to indemnity, contribution and contributory negligence 14. Provisions relating to the armed forces 15. Saving in respect of acts done under prerogative and statutory powers 4 Laws of Malaysia ACT 359 PART III JURISDICTION AND PROCEDURE The High Court Section 16. Civil proceedings in the High Court Sessions Court 17. Civil proceedings in the Sessions Court General 18. Application of written law relating to procedure 19. Summary application to the High Court in certain revenue matters 20. Interpleader 21. Parties to proceedings by and against the Federal Government 22. Parties to proceedings by and against a State Government 23. Suits in the name of deceased persons 24. Appearance of law officers 25. Appearance of public officers 26. Service of documents 27. Removal of proceedings in the High Court or Subordinate Courts 28. Removal and transfer of proceedings 29. Nature of relief 30. Appeals and stay of execution PART IV COSTS, JUDGMENTS AND EXECUTION 31. Costs 32. Interest on debts, damages and costs 33. Satisfaction of orders against the Government 34. Execution by the Government 35. Attachment of moneys payable by the Government PART V MISCELLANEOUS AND SUPPLEMENTAL Miscellaneous 36. Discovery Exclusion of proceedings in rem against the Government 37. 5 Government Proceedings Section 38. Limitation of actions 39. Application to the Government of certain statutory provisions (Omitted) 40. 41. Proceedings in courts other than the High Court and Sessions Court Supplemental 42. Rules of court 43. Pending proceedings 44. Financial provisions 45. Savings (Omitted) 46. 6 Laws of Malaysia ACT 359 7 Government Proceedings LAWS OF MALAYSIA Act 359 GOVERNMENT PROCEEDINGS ACT 1956 An Act relating to proceedings by and against the Federal Government and the Governments of the States. [Peninsular Malaysia--1 April 1958, L.N. 107/1958; Sabah and Sarawak--25 February 1965, L.N. 67/1965] PART I PRELIMINARY Short title and application 1. (1) This Act may be cited as the Government Proceedings Act 1956 and shall have effect throughout Malaysia. (2) (Omitted). Interpretation 2. (1) Any reference in this Act shall, unless the context otherwise requires, include a reference to rules of court made for the purposes of this Act. (2) In this Act, except in so far as the context otherwise requires or it is otherwise expressly provided-- "civil proceedings" means any proceeding whatsoever of a civil nature before a court and includes proceedings for the recovery of fines and penalties and an application at any stage of a proceeding, but does not include proceedings under Chapter VIII of the Specific Relief Act 1950 [Act 137], or such proceedings as would in England be brought on the Crown side of the Queen's Bench Division; " G o v e r n m e n t " includes the Federal Government and the Governments of the States; 8 Laws of Malaysia ACT 359 "High Court" means the High Court in Malaya and the High Court in Borneo or either of them, as the case may require; "Land law" means the National Land Code [Act 56 of 1965] and the corresponding law in force in any State; "law officer" means the Attorney General and the Solicitor General and, in respect of proceedings by or against the Government of a State or to which a State officer is a party, includes the Legal Adviser of such State, and, in the case of the States of Sabah and Sarawak, the State Attorney General; *"Legal Adviser" means the Legal Adviser of a State; "legal officer" includes a law officer, the Parliamentary Draftsman and a Federal Counsel, and, in the case of the States of Sabah and Sarawak, a law officer and a legally qualified member of the Federal or State Attorney General's Chambers, authorized by a law officer in accordance with section 24; "officer", in relation to a Government, includes a person in the permanent or temporary employment of such Government and accordingly (but without prejudice to the generality of the foregoing) includes a Minister of such Government; "order" includes a judgment, decree, rule, award or declaration; "prescribed" means prescribed by or under rules of court made for the purposes of this Act; "proceedings against the Government" includes a claim by way of set-off or counterclaim in proceedings by such Government; "statutory duty" means any duty imposed by any written law; "State land" has the meaning assigned to it in the Land law; "subordinate Court" means a Sessions Court and any Magistrate's Court. (3) Any reference in Part IV or V to civil proceedings by or against the Government, or to civil proceedings to which the *NOTE--The definition of "Legal Adviser" is not applicable to Sabah and Sarawak­see L.N. 67/1965. 9 Government Proceedings Government is a party, shall be construed as including a reference to civil proceedings to which any officer of a Government as such is a party: Provided that the Federal Government shall not for the purposes of Parts IV and V be deemed to be a party to any proceedings by reason only that they are brought by the Attorney General upon the relation of some other person. PART II SUBSTANTIVE LAW Right of the Government to sue 3.  Subject to this Act and of any written law where the Government has a claim against any person which would, if such claim had arisen between subject and subject, afford ground fo civil proceedings, the claim may be enforced by proceedings taken by or on behalf of the Government for that purpose in accordance with this Act. Claims enforceable by proceedings against Government 4.  Subject to this Act and of any written law, any claim against the Government which-- (a) is founded on the use or occupation or the right to the use or occupation of State land; or (b) arises out of the revenue laws; or (c) arises out of any contract made by the authority of the Government which would, if such claim had arisen between subject and subject, afford ground for civil proceedings; or (d) is a claim (other than a claim in tort) for damages or compensation not included in the preceding paragraphs which might lawfully be enforced by civil proceedings as between subject and subject, shall be enforceable by proceedings against the Government for that purpose in accordance with this Act. Liability of the Government in tort 5.  Subject to this Act, the Government shall be liable for any wrongful act done or any neglect or default committed by any public officer in the same manner and to the same extent as that 10 Laws of Malaysia ACT 359 in which a principal, being a private person, is liable for any wrongful act done, or any neglect or default committed by his agent, and for the purposes of this section and without prejudice to the generality thereof, any public officer acting or purporting in good faith to be acting in pursuance of a duty imposed by law shall be deemed to be the agent of and to be acting under the instructions of the Government. Limits of liability of the Government 6. (1) No proceedings shall lie against the Government by virtue of section 5 in respect of any act, neglect or default of any public officer, unless proceedings for damages in respect of such act, neglect or default would have lain against such officer personally. (2) Any written law which negatives or limits the amount of the liability of any public officer in respect of any act, neglect or default committed by that officer shall, in the case of proceedings against the Government under section 5 in respect of such act, neglect or default of such officer, apply in relation to the Government as it would have applied in relation to such officer if the proceedings against the Government had been proceedings against such officer. (3) No proceedings shall lie against the Government by virtue of section 5 in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any r e s p o n s i b i l i t i e s of a judicial nature vested in him, or any responsibilities which he has in connection with the execution of judicial process. (4) No proceedings shall lie against the Government by virtue of section 5 in respect of any act, neglect or default of any public officer, unless that officer was at the material time employed by the Government and paid in respect of his duties as an officer of the Government wholly out of the revenues of the Government, or any fund certified by the appropriate financial officer for the purposes of this subsection or was at the material time holding an office in respect of which the appropriate financial officer certifies that the holder thereof would normally be so paid. (5) For the purposes of subsection (4) the expression "appropriate financial officer" means, in respect of the Federal Government, the Minister of Finance, and in respect of the Government of a State, the State Financial Officer, and, in the case of the States of Sabah and Sarawak, the State Minister responsible for finance. 11 Government Proceedings Savings of acts done in exercise of public duties 7. (1) Notwithstanding any other provisions of this Act to the contrary no proceedings, other than proceedings for breach of contract, shall lie against the Government on account of anything done or omitted to be done or refused to be done by the Government or any public officer in exercise of the public duties of the Government. (2) For the purposes of subsection (1) the expression "exercise of the public duties" includes-- (a) the construction, maintenance, diversion and abandonment of railways, roads, bridle-paths or bridges; (b) the construction, maintenance and abandonment of schools, hospitals or other public buildings; (c) the construction, maintenance and abandonment of drainage, flood prevention and reclamation works; and (d) the maintenance, diversion and abandonment of the channels of rivers and waterways. (3) Nothing in this section shall prevent the bringing of any suit for damages or compensation arising out of negligence or trespass in the execution of any works of construction or maintenance undertaken by the Government in the exercise of the said public duties. (4) Nothing in this Act shall subject the Government, in its capacity as a highway authority, to any greater liability than that to which a local authority is subject in that capacity. Public nuisances 8. (1) In the case of a public nuisance the Attorney General, or two or more persons having obtained the consent in writing of the Attorney General, may institute a suit, though no special damage has been caused, for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case. (2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions. 12 Laws of Malaysia ACT 359