The question dealt with the government liability and privilege.

It is in accordance with
the Rule of Law that governments in democratic countries should be able to sue and to be sued in
the same way as private individuals.
The first issue in this question is whether the Government can be made liable for the
tortious act under negligence of its officer, Encik Ghani b Atan.
The basic provision of tortious liability of the government in Malaysia is defined under
Section 5 of Government Proceedings Act 1956. The government is said to be made liable for
any wrongful act done, or any neglect or default committed by any public officer. The general
principle under this provision is the administration is liable to pay damages when the action of
the administration falls under one of the recognized torts which are trespass, nuisance and
negligence. In this question, Encik Ghani is the the chief engineer with Jabatan Parit dan Taliair
(JPT), which is under government. In addition, Encik Ghani has done the negligence when he
signed off on the plans without rectifying the error of the miscalculation in the structural
drawings of the dam.
In order for the government to be held liable under Section 5 GPA 1956, there are two
elements that must be fulfilled.
The first element is laid down under Section 6(1) of the 1956 Act, where an action shall
not lie against the government under Section 5 unless proceedings for damages in respect of the
act, neglect or default by an officer would have lain against such officer personally. The action is
said to be fail if the act complained of would not have given rise to an action against the officer
concerned. The onus of proof lies on the person filing the suit against the government to show
that the act done by the officer is in close proximity to the cause of action. This is illustrated in
the case of Mohamed Raihan Ibrahim v Government of Malaysia (1981), where the appellant
sustained injuries when he was accidentally struck on the head by the shovel wielded by a pupil
during a practical gardening class, he claimed that the respondents failed to provide supervision
of the pupils participating and to instruct the pupils on the proper use of a shovel. The federal
court ruled in favour of the pupils and held that the school teacher concerned had a duty of care
towards the student while in school premises. Thus, the respondents were considered negligent

for failing to take proper care and steps to prevent the pupils from sustaining injury, checking on
the garden stools on providing a safe system in holding a gardening class. The appellant was
awarded damages accordingly.
In applying to the question, Encik Ghani as the chief engineer of JPT has owed the duty
of care to check and approve the preparation of structural plans for the construction of a large
dam in the Sg Kerian area. However, he has breached the duty of care when he did not rectify the
error of the miscalculation in the structural drawings of the dam. From the breach of duty of care
done by Encik Ghani, the water was escaping from the cracks of the dam and damaging the crops
cultivated by the villagers of Kampung Senai and has resulted the deaths of 5 people of the said
village. Thus, Encik Ghani is considered negligent for failing to take all reasonable and proper
steps to prevent the crack of the dam.
Next, the second element is stated under Section 6(4) of 1956 Act where the government
is is not liable for any act, neglect or defaults of an officer unless he was employed by the
government and paid in respect of his duties as an officer wholly out of government revenues.
Whether the identity of the wrong doing officer needs to be established or not depends on the
nature of the cause of action. In a suit for damages arising out of negligence, the officers identity
is necessary as the officers negligence must be established before the government can be held
liable. In Haji Abdul Rahman v Government of Malaysia (1966), the plaintiff brought an action
to recover damages arising out of a traffic accident caused by the negligence of the driver of a
government vehicle. The court dismissed the action as the government servant, which was the
driver was not made a defendant. The court applied Section 5, 6(1), 6(4), of the 1956 Act and
noted the identity of the officer must be ascertained and his liability must be established before
the government can be made liable. Federal Court has affirmed in the case of Kerajaan Malaysia
v Lay Kay Tee where it was held that in tort, the government officer responsible for the alleged
tortious act must be made a party and that officers liability must be established before the
government can be held vicariously liable. To be applied into the question, Encik Ghani, the
officer of the government must first be ascertained and be made a party. Encik Ghanis liability
must be established before the government can be held vicariously liable. Based on the question,
Encik Ghanis identity is ascertained as he is the chief engineer of JPT and also his liability for

making negligence during the preparation of construction of the dam in the area of Sungai
Kerian has been established.
Nevertheless, there are limitations to the government liability. In this issue the limitations
that can be applied is the government cannot be sued for any act done or omitted in exercising its
power for public duties. It is stated in S.7(1) GPA 1956. In order to determine the definitions of
public duties, we may refer to S.7(2) of GPA 1956 which stated that public duties includes
construction and maintenance of railways, hospitals, schools and other public buildings. Thus,
we may refer the dam built by Jabatan Parit Dan Taliair is also one of the public duties of
government as the dam may supply electricity to the villages. With this limitation, the
government could not be sued as they are only practising their public duties. Nevertheless, the
limitations, do not protect the government from being sued for damages and negligence.
In applying to the question, the government could not be held liable as they were only
exercising their public duties. But, as Encik Ghani failed to rectify the error in the calculations of
the structural drawings of the dam and signed off the plans without rectifying the errors, this
could amount to negligence in execution of public duties and the government who is vicariously
liable to Jabatan Parit dan Taliair may be held liable to the damages suffered by the villagers in
Kg. Semai.
We can conclude that, the government can be held liable towards the tortious act by its
officer, En Ghani bin Atan as he has fulfilled all the two elements. Furthermore, the act of the
government cannot be protected by any limitation as it was the negligent done by the officer
employed by the government.
The second issue of the question is whether the government can be held liable for the failure
of payment of RM 30 million to Syarikat Tunas Harapan Sdn Bhd,
The government contractual liability arises from article 69(1) of Federal Constitution that
gives the right to enter into a contract to the government. It is stated that the federation has power
to acquire, hold and dispose of property or any land and to make contracts. In addition, the
Government Proceedings Act 1956, here and after referred as GPA 1956, also highlighted the
liabilities of the government in any contract entered by them. Under section 4(c) of the Act, the

contractual claims are enforceable against the government out of any contract made by the
authority of the government. This provision provides that the government can be sued for the
breach of contract done by its officers. However, the government can only liable for the contract
entered by the authority of the government and if it is not authorized, the officer will be
personally liable. Another important provision is section 6 of the same Act which states that how
the contract is authorized by the government. It provides that no contract shall be deemed to be
made by authority of the government (Federal or State) unless made according to the manner laid
down in the Act. The manner is mentioned under section 2 of GPA 1956 that the contract must be
in writing in the name of the government and signed by the minister or authorized officer. In the
case of a state, the contract is to be made in the name of the State Government and signed by
State Chief Minister or by any public officer duly authorized in writing by the Chief Minister.
However, there are a few limits imposed in suing the government for contractual liability.
Section 8 of GPA 1956 states that no public officer shall be personally liable upon any contract
made on behalf of the government but he shall be personally liable if he expressly pledges his
personal credit or where he contracts otherwise than as the government officer. Moreover,
section 29(1) proviso a of GPA 1956 provides that an injunction or specific performance cannot
be granted against the government but the court may make a declaration of the right of the
parties.
In applying to the question, the government is under a valid contract with Syarikat Tunas
Harapan Sdn Bhd as the government has the right to enter into a contract by virtue of article
69(1) of Federal Constitution. Thus, the government is responsible for the payment to Syarikat
Tunas Harapan Sdn Bhd as stated in the contract entered by its officer, Encik Ghani. This is
because the contract made between Encik Ghani and JPT is authorized by the government as it is
made in writing and approved by the government before the construction could be proceeded and
the manner of the contract as laid down under section 2 of GPA 1956 has been fulfilled.
Moreover, the contract made by Encik Ghani is on behalf of the government and the government
should be liable for the contract under section 8 of GPA 1956. Therefore, Syarikat Tunas
Harapan Sdn Bhd can claim its right of payment to the government. However, section 29(1)
proviso a also should be referred to as Syarikat Tunas Harapan Sdn Bhd cannot claim for special

performance and injunction against the government. For that reason, Syarikat Tunas Harapan
may only seek for declaration of their right from the court.
The third issue is whether the the government has the privilege over the inquiry report
and could Datuk Osman be held liable for the possession of the confidential documents.
Government privilege is a privilege which gives the government to prevent the disclosure
of evidence in the courts on the ground that there is a public interest, or injury is caused to
national affairs by the disclosure of certain documents or information in certain documents.
Government privilege or called as crown privilege in UK has been applied in the case of Duncan
v Cammell, Laird & Company where the court held that the documents, which the defendant
sought to discover from the contractors are protected and not to be disclose any details on the
ground that it would be contrary to the public interest. This decision was then upheld in the
House of Lords on appeal. However, this decision has been criticized and rejected in a later case
of Conway v Rimmer. In Conway v Rimmer, the court held that it was up to the court to examine
the document in question and determine and decide whether or not the document can be regarded
as confidential and be produce as an evidence before court.
In Malaysia, the government privilege was stated in Section 123 of Evidence Act where
No one shall be permitted from producing official records relating to affairs of the State or to
give evidence from such materials without permission of the head of the department, subject to
control of the Minister or Chief Minister. However, in Section 162 of Evidence Act, it stated
that it is up to the judiciary to determine if privilege applies by seeing the balance between public
and private interest. The application of Section 213 with Section 162 of Evidence Act can be
seen in BA Rao v Sapuran Kaur where the Federal Court approved the trial court decision to
disallowed the objection by the Deputy Secretary General of Ministry of Health to apply the
privilege from disclosure under Section 123. The Federal Court, in dismissing the appeal held
that Section 123 and 162, read together means that it is for the court to determine the
admissibility of the evidence and a mere assertion of confidentiality and involvement in affairs of
State without evidence in support cannot shut out the evidence sought. Another government
privilege that can be seen in Malaysia is the Official Secret Act 1972 (OSA). Under Section 2B, a
Minister, Mentari Besar, or the Chief Minister of a state may appoint any public officer by a
certificate under his hand to classify any official document, information or material as Top

Secret, Secret, Confidential or Restricted. If someone acquire the classified document

without the permission, then under Section 4(1), they can be guilty of an offence punishable with
imprisonment for a term not less than one year and not exceeding fourteen years. In PP v Lim Kit
Siang, the accused what charged under several offences under Section 8 of OSA. The court in
their judgment held that it was up to the government to determine what is secret and therefore
what the government keeps from the public on the ground of secrecy is not subject to judicial
scrutiny.
In the question, Yong & Partners is a law firm who represent all the 5 parties that died
because of the large cracks on the surface of the dam causing the water leakage. They requested
for the inquiry report labelled SULIT that made by the Inquiry Board but was denied on the
ground that it was an affairs of the State. Somehow, Datuk Osman managed to get a copy of the
report and held a press conference revealing the report.

In application to the question, the report made by the Board of Inquiry were marked as
SULIT and if considering that the procedure of appointment of public officer to classify the
document was right the report is protected under Section 2B of Official Secret Act 1972.
Therefore, the inquiry report cannot be use by the firm as an evidence against the government as
it is protected by the privilege under Official Secret Act 1972. As for Datuk Osman, because he
acquired the report without any permission from the government as stated under Section 123 of
Evidence Act, he could be charged under Section 4(1) for imprisonment for the possession of a
government secret document without a permit.
In conclusion, the inquiry report made by the Board of inquiry is protected as a
government privilege and Datuk Osman could be charge for the possession of the report without
a permit.