GOVERNMENT PROCEEDINGS ACT 1956

(Omitted).

Interpretation

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;

“Government” includes the Federal Government and the

Governments of the States;

“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.

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 Sarawak–see

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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.

is founded on the use or occupation or the right to the use or occupation of State land; or

arises out of the revenue laws; or

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

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

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.

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 responsibilities of a judicial nature vested in him, or any responsibilities which he has in connection with the execution of judicial process.

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.

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.

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Savings of acts done in exercise of public duties

For the purposes of subsection (1) the expression “exercise of the public duties” includes—

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.

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

Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.

*(3) The powers of the Attorney General under this section shall, subject to any directions of the Attorney General, be exercisable by the State Attorney General.

Public, religious, social or charitable trusts

asserting any interest or right in the trust property;

removing any trustee;

appointing a new trustee;

vesting any property in a trustee;

directing accounts and inquiries;

declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;

authorizing the whole or any part of the trust property to be let, sold, mortgaged, charged or exchanged;

**(h) settling a scheme; and

obtaining such further or other relief as the nature of the case may require.

No suit claiming any of the reliefs specified in subsection (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with that subsection.

Subject to subsections (1) and (2), all suits and proceedings in any court relating to any such trust as is therein referred to or otherwise in which the Government is interested, or in which the

*NOTE—Subsection 8(3) is applicable to Sabah and Sarawak only–see L.N. 67/1965.

**NOTE—Paragraph 9(1)(h) is not applicable to Sabah and Sarawak–see L.N. 67/1965.

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interests of the public are affected, or in which if brought in

England the Attorney General of England would be, or would be made, a necessary party as plaintiff or defendant, whether by himself or by relation of parties, shall be brought and had in the name of the Attorney General as plaintiff or defendant; and the

Attorney General shall have and exercise therein the same rights, duties and powers as the Attorney General of England would have and exercise in England in similar cases so far as the circumstances of Malaysia admit.

*(4) The powers of the Attorney General under this section shall, in respect of any trust on the concurrent list, be exercisable by the State Attorney General.

Priority of Government debts

Nothing herein contained shall affect any right vested in any person by virtue of a mortgage or charge of immovable property duly registered in the manner provided by law for the registration of such mortgage or charge.

Sureties to be sued as principals

Save as expressly provided by this section, no proceedings shall lie against the Government by virtue of this Act in respect of the infringement of a patent, a registered trade mark, or a copyright.

Application of law as to indemnity, contribution and contributory negligence

at the time when that thing is suffered by that other person, he is either on duty as a member of the forces or is, though not on duty as such, on any land, premises, ship, aircraft or vehicle for the time being used for the purposes of the forces; and

the Minister of Finance certifies that his suffering that thing has been or will be treated as attributable to service for the purposes of entitlement to an award under any written law relating to the disablement or death of members of the force of which he is a member:

Provided that this subsection shall not exempt a member of the said forces from liability in tort in any case in which the court is satisfied that the act or omission was not connected with the execution of his duties as a member of those forces.

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No proceedings in tort shall lie against the Government for death or personal injury due to anything suffered by a member of the forces if—

The Minister charged with the responsibility for Defence and Internal Security, if satisfied that it is the fact—

In this section the expression—

Where in any proceedings under this Act it is material to determine whether anything was properly done or omitted to be done in the exercise of the prerogative of the Yang di-Pertuan

Agong or a Ruler or Yang di-Pertua Negeri or the Government, the Yang di-Pertuan Agong may, if satisfied that the act or omission was necessary for any such purpose as is mentioned in the last preceding subsection, issue a certificate to the effect that the act or omission was necessary for that purpose; and the certificate shall, in those proceedings, be conclusive as to the matter so certified.

Any proceedings by or against the Government in a Sessions

Court shall be instituted and proceeded with in accordance with this Act and not otherwise.

General

Application of written law relating to procedure

Rules of court made for the purposes of this section may provide that judgment may be given upon an affidavit by a duly authorized officer when the facts are not in dispute upon a written application to the court by such officer.

For the purposes of this section the expression “duly authorized officer” means an officer of any Government department whose duty it is to administer or enforce the written law in respect of which such application as is referred to in subsection (2) is made duly authorized by the head of such department for the purpose.

Interpleader

Where any civil proceedings against the Federal Government are instituted, an application may at any stage of the proceedings be made to the court by or on behalf of the Attorney General to have the Government of such State as may be specified in the application substituted for or joined with the Federal Government as defendant to the proceedings.

Upon any such application as is mentioned in the last preceding subsection or in subsection 22(2) the court may if it thinks fit make an order granting the application on such terms as the court thinks just; and on such an order being made the proceedings shall continue as if they had been commenced against the Government specified in that behalf in the order.

Parties to proceedings by and against a State Government

Where any civil proceedings against the Government of a

State are instituted, an application may at any stage of the proceedings be made to the court by or on behalf of the Legal Adviser of such

State, or, in the case of the States of Sabah and Sarawak, the State

Attorney General to have the Federal Government or the Government of such other State as may be specified in the application substituted for or joined with the Government of such State as defendant to the proceedings.

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Suits in the name of deceased persons

If none of the executors named in the will of a deceased defendant, or none of the next of kin of such deceased defendant take a grant of probate of such will or of letters of administration to the estate within one month from the death of such defendant, the Court may, on the application of the Government, and on notice to the executors or next of kin, or to such of them as are known to be in Malaysia, appoint an official administrator to the estate for the purposes of the suit; and such administrator may defend or continue the defence of the suit.

The Court may, of its own motion or on the application of any such personal representative or next of kin or official administrator, grant time in any such suit, and otherwise make such arrangements, and impose such terms and conditions for the continuance of the suit as to the Court seem right to secure justice to the parties.

Appearance of law officers

in civil proceedings by or against the Federal Government a law officer, the Parliamentary Draftsman or a Federal

Counsel, or, in the case of the States of Sabah and Sarawak, a legally qualified member of the Federal or State Attorney

General’s Chambers authorized by the Attorney General for the purpose; and

in civil proceedings by or against the Government of a

State a law officer, the Parliamentary Draftsman or a

Federal Counsel authorized by the Legal Adviser of such

State, and, in the case of the States of Sabah and Sarawak, the State Attorney General or any legally qualified member of the State Attorney General’s Chambers authorized by the State Attorney General for the purpose, may appear as advocate on behalf of such Government and may make and do all appearances, acts and applications in respect of such proceedings on behalf of the Government.

Notwithstanding any written law in civil proceedings to which a public officer is a party—

An advocate and solicitor of the High Court duly retained by the Attorney General in the case of civil proceedings by or against the Federal Government or a Federal officer, or by the

Legal Adviser, or, in the case of the States of Sabah and Sarawak, by the State Attorney General in the case of civil proceedings by or against the Government of a State or a State officer, may appear as advocate on behalf of such Government or officer in such proceedings.

In civil proceedings to which the Attorney General is a party under section 8 or 9, a law officer, the Parliamentary Draftsman or a Federal Counsel authorized by the Attorney General for the purpose, and, in the case of the States of Sabah and Sarawak, a legal officer, may appear as advocate and make and do all appearances, acts and applications in respect of such proceedings on behalf of the Attorney General.

*NOTE—For Sabah and Sarawak substitute the following paragraph for paragraph 24(2)(b):

“(b) in his personal capacity, if—

An authorization under subsection (1) may be special in respect of any particular proceedings or general in respect of all proceedings or in respect of all proceedings of a particular class.

Service of documents

The amount of such sum of money shall be ascertained in such manner as the Court may direct.

If upon the taxation of the costs of the proceedings it appears to the Court or Registrar that such sum of money was greater or less than the additional expense actually incurred by the party the

Court or Registrar may in its or his discretion order that the amount of the excess or the deficiency as the case may be, should be repaid by the party to the Government or paid by the Government to the party respectively and any such amount shall be recoverable as if it were costs awarded in such proceedings to the party entitled to receive the same but subject as aforesaid no sum or any part thereof paid by the Government in accordance with such undertaking shall be recoverable by the Government as costs or otherwise whatever the event of the proceedings.

Removal and transfer of proceedings

where in any proceedings against the Government any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties; and

in any proceedings against the Government for the recovery of land or other property the court shall not make an order for the recovery of the land or the delivery of the property, but may in lieu thereof make an order declaring that the plaintiff is entitled as against the Government to the land or property or to the possession thereof.

The court shall not in any civil proceedings grant any injunction or make any order against an officer of the Government if the effect of granting the injunction or making the order would be to give any relief against the Government which could not have been obtained in proceedings against the Government.

Appeals and stay of execution

in the case of proceedings to which by reason of any written law or otherwise the Attorney General or any officer of Government as such is authorized or required to be made a party, the court shall have regard to the nature of the proceedings and the circumstances in which the Attorney General or such officer appears and may in the exercise of its discretion order any other party to the proceedings to pay the costs of the Attorney General or such officer whatever may be the result of the proceedings;

and

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nothing in this section shall affect the power of the court to order, or any written law requiring, the payment of costs out of any particular fund or property or any provision of any written law expressly relieving the Attorney General or such officer of the liability for costs.

*(2) In any civil proceedings before any court in which a legal officer appears as an advocate under this Act, and costs are awarded to or against the Attorney General, or to or against the party on whose behalf such legal officer appears, such costs shall include such items, including fees for drawing, for getting up the case and for attendances, as would be included within the meaning of the word “costs” in any written law if an advocate and solicitor of the

High Court had appeared.

**(3) Such costs shall be in accordance with any scale of fees prescribed from time to time to be chargeable by advocates and solicitors and may be taxed in accordance with any written law for the time being in force for the taxation of the fees and costs of such advocates and solicitors.

In any such civil proceedings as are referred to in subsection (2) in which two legal officers appear as advocates and the court certifies for two counsel, costs shall be payable in respect of the services of both such legal officers.

Costs awarded in accordance with this section to a party for whom any of the legal officers referred to in subsection (2) appear as advocate shall, when recovered, be paid into the Treasury.

A legal officer shall not be personally liable for costs in any proceedings under this Act.

In this section and in section 33 the word “court” includes an arbitrator.

Interest on debts, damages and costs

This section shall apply both in relation to proceedings pending at the commencement of this Act and in relation to proceedings instituted thereafter.

Satisfaction of orders against the Government

A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the person for the time being named in the record as the advocate for the Government or for the Government department or officer concerned.

If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the appropriate Government shall, subject as hereinafter provided, pay to the person entitled or to his solicitor the amount appearing by the certificate to be due to him together with the interest, if any, lawfully due thereon:

Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such directions to be inserted therein.

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Save as aforesaid no execution or attachment or process in the nature thereof shall be issued out of any court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government or any officer of the Government as such, of any such money or costs.

This section shall apply both in relation to proceedings pending at the commencement of this Act and in relation to proceedings instituted thereafter.

Execution by the Government

This section shall apply both in relation to proceedings pending at the commencement of this Act and in relation to proceedings instituted thereafter.

Nothing in this section shall affect any procedure which immediately before the commencement of this Act was available for enforcing an order made in favour of the Government in proceedings brought by the Government for the recovery of any fine or penalty, or the forfeiture or condemnation of any goods, or of any ship or any share in a ship.

Attachment of moneys payable by the Government

No such order shall be made in respect of any money which is subject to any written law prohibiting or restricting assignment or charging or taking in execution.

No such order shall be made unless and until there shall have been produced in court the written consent to such order, of the Minister of Finance in the case of an order against the Federal

Government, or of the Chief Minister in the case of an order against a State Government.

For the purposes of this section the word “Government”

shall be deemed to include any public officer who in his official capacity has any money in his custody or control.

The preceding subsections shall, so far as they relate to forms of relief falling within the jurisdiction of a subordinate

Court, have effect in relation to subordinate Courts as they have effect in relation to the High Court.

in any civil proceedings in the High Court or a subordinate

Court to which the Government is a party, the Government may be required by the court to make discovery of documents and produce documents for inspection; and

in any such proceedings as aforesaid, the Government may be required by the court to answer interrogatories:

Provided that this section shall be without prejudice to any other written law, or to any rule of law which authorizes or requires the withholding of any document or the refusal to answer any question on the ground that the disclosure of the document or the answering of the question would be injurious to the public interest.

Any order of the court made under the powers conferred by paragraph (1)(b) shall direct by what officer of the Government the interrogatories are to be answered.

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Without prejudice to the proviso to the preceding subsection (1), any rules made for the purposes of this section shall be such as to secure that the existence of a document will not be disclosed if, in the opinion of the persons hereinafter mentioned, it would be injurious to the public interest to disclose the existence thereof. Such persons are—

Where proceedings in rem have been instituted in the High

Court or in a subordinate Court against any such ship, aircraft, cargo or other property, the court may, if satisfied, either on an application by the plaintiff for an order under this subsection or an application by the Government to set aside the proceedings, that the proceedings were so instituted by the plaintiff in the reasonable belief that the ship, aircraft, cargo or other property did not belong to the Government, order that the proceedings shall be treated as if they were in personam duly instituted against the

Government in accordance with this Act, or duly instituted against any other person whom the court regards as the proper person to be sued in the circumstances, and that the proceedings shall continue accordingly.

An order under subsection (2) may be made upon such terms, if any, as the court thinks just; and where the court makes any such order it may make such consequential orders as the court thinks expedient.

Limitation of actions

An order made under this section may in particular—

Any such order shall have effect notwithstanding any provision made by or under any written law with respect to the court in question; and any such order may provide for amending or revoking any provision so made as aforesaid.

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An order made under this section may be varied or revoked by a further order made by the Yang di-Pertuan Agong thereunder.

An order made under this section shall be published in the

Gazette and, as soon as possible thereafter, shall be laid before

Parliament and, if at the next meeting of the Parliament after any such order is laid before it a resolution is passed annulling such order or any part thereof, the whole order shall thenceforth be void, but without prejudice to the validity of anything previously done or omitted to be done thereunder, as from the date of notification in the Gazette of the passing of such resolution.

Supplemental

Rules of court

Provision shall be made by rules of court with respect to the following matters—

Provision may be made by rules of court for regulating any appeals to the High Court, whether by way of case stated or otherwise, under the written law relating to the revenue, and any rules made under this subsection may revoke any written law in force immediately before the commencement of this Act so far as they regulate any such appeals, and may make provision for any matters for which provision was made by any written law so in force.

Rules of court made under this section shall be published in the Gazette and, as soon as possible thereafter shall be laid before the Parliament and if at the next meeting of the Parliament after any such rule is laid before it a resolution is passed annulling such rule or any part thereof, the whole rule shall thenceforth be void, but without prejudice to the validity of anything previously done thereunder, as from the date of notification in the Gazette of the passing of such resolution.

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Pending proceedings

*43.

Save as otherwise expressly provided, this Act shall not affect proceedings by or against the Government which have been instituted before the commencement of this Act; and for the purposes of this section proceedings by petition of right shall be deemed to have been so instituted if a petition of right with respect to the matter in question has been left with the Clerk of Council for submission to the Governor in Council before the commencement of this Act.

Financial provisions

Any sums payable to the Government by reason of the passing of this Act shall be paid into the appropriate Treasury.

Savings

Except as therein otherwise expressly provided, nothing in this Act shall—

(Omitted).

Where any property vests in the Government by virtue of any rule of law which operates independently of the acts or the intentions of the Crown or the Government, the Government shall not by virtue of this Act be subject to any liabilities in tort by reason only of the property being so vested; but this subsection shall be without prejudice to the liabilities of the Government under this Act in respect of any period after the Government or any person acting for the Government has in fact taken possession or control of any such property, or entered into occupation thereof.

***(5) This Act shall not operate to limit the discretion of the court to grant relief under Chapter VIII of the Specific Relief Act 1950, or by way of mandamus in cases in which such relief might have been granted before the commencement of this Act, notwithstanding that by reason of this Act some other and further remedy is available.