Enforcement immunity

Domestic law

Describe domestic law governing the scope of enforcement immunity.

Section 29(1) of the Government Proceedings Act 1956 (GPA) provides that the court shall not make an order for the recovery of land or the delivery of property but may in lieu thereof make an order declaring that the aggrieved party is entitled to the said land or property.

Application of civil procedure codes

When enforcing against a state, would debt collection statutes and the enforcement sections of civil procedure codes or similar codes also apply?

Section 33(4) of the GPA provides that:

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.

Essentially, the effect of this section is that the only way to enforce a money judgment against the government is by the issue of a certificate (section 33(2) of the GPA). Once a certificate is obtained and the government still refuses to comply with the said money judgment, the aggrieved party may then apply for a mandamus order to compel payment by the government (Minister of Finance, Government of Sabah v Petrojasa Sdn Bhd [2008] 4 MLJ 641).

Consent for further enforcement proceedings

Does a prior submission to the jurisdiction of a court or tribunal constitute consent for any further enforcement proceedings against the property of the state?

No. Case law suggested that even if there was some prior contractual agreement to submit, the sovereign can subsequently refuse to be impleaded (Village Holdings Sdn Bhd v Her Majesty the Queen in Right of Canada [1988] 2 MLJ 656).

Further, article 32(4) of the Vienna Convention on Diplomatic Relations 1961 provides that ‘[w]aiver of immunity from jurisdiction in respect of administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgment, for which a separate waiver shall be necessary.’

Property or assets subject to enforcement or execution

Describe the property or assets that would typically be subject to enforcement or execution.

Section 29(1) of the GPA provides that the court shall not make an order for the recovery of land or the delivery of property but may in lieu thereof make an order declaring that the aggrieved party is entitled to the said land or property. In this respect, the courts cannot make an order for delivery of property. The relief therefore generally sought is monetary in nature.

Assets covered by enforcement immunity

Describe the assets that would normally be covered by enforcement immunity and give examples of any restrictive or broader interpretations adopted by the courts.

Case law in Malaysia is silent on this point.

However, article 22(3) of the Vienna Convention on Diplomatic Relations 1961 provides that ‘[t]he premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.’

To date, there are no known cases of the diplomatic premises, embassy accounts or mixed embassy accounts of Malaysia having been the subject of any enforcement proceedings, let alone successful enforcement proceedings.

Explain whether the property or bank accounts of a central bank or other monetary authority would be covered by enforcement immunity even when such property is in use or is intended for use for commercial purposes.

Case law in Malaysia is silent on this point.

Test for enforcement

Explain whether domestic jurisprudence has developed any further test that must be satisfied before enforcement against a state is permitted.

There is no further test but merely a further procedure to be followed.

The procedure for any enforcement against Malaysia or any of its states in domestic proceedings is set out in section 33 of the GPA (see question 17).

Service of arbitration award or judgment

How is a state served with process or otherwise notified before an arbitration award or judgment against it (or its organs and instrumentalities) may be enforced?

No legislation lays down the process for a state to be served or notified before an arbitration or judgment against it may be enforced.

The Arbitration Act 2005 does not prescribe any service of process or notification before an arbitration award.

History of enforcement proceedings

Is there a history of enforcement proceedings against states in your jurisdiction? What part of these proceedings is based on arbitral awards?

Yes. There are a number of cases where an arbitration award against the state government has been registered in the High Court; however, as stated above, any form of enforcement against a state is governed by section 33 of the GPA.

A landmark decision on the enforcement proceedings against the government is Minister of Finance, Government of Sabah v Petrojasa Sdn Bhd [2008] 4 MLJ 641.

Public databases

Are there any public databases through which assets held by states may be identified?

No.

Court competency

Would a court in your state be competent to assist with or otherwise intervene to help identify assets held by states in the territory?

No. Order 48 of the Rules of Court 2012, which set out that the procedure to examine of judgment debtor was held not to be an enforcement mechanism available against the government. (Minister of Finance, Government of Sabah v Petrojasa Sdn Bhd [2008] 4 MLJ 641; Menteri Besar Negeri Pahang Daruk Makmur v Seruan Gemilang Makmur Sdn Bhd [2010] 4 MLJ 360.)