636 - DIPLOMATIC PRIVILEGES (VIENNA CONVENTION) ACT 1966

Diplomatic Privileges (Vienna Convention) LAWS OF MALAYSIA RepRint Act 636 DIpLOMAtIc prIvILegeS (vIennA cOnventIOn) Act 1966 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 968 in CollaboRation with peRCetakan nasional malaysia bhd 2006 DIpLOMAtIc prIvILegeS (vIennA cOnventIOn) Act 1966 first enacted ... … … … … … 966 (act no. 4 of 966) Revised … … … … … … 004 (act 636 w.e.f. 8 october 004) 3 LAWS OF MALAYSIA Act 636 DIpLOMAtIc prIvILegeS (vIennA cOnventIOn) Act 1966 aRRanGement of seCtions section . short title, commencement and application . (Omitted) 3. application of vienna Convention 3a. application of act to specified body or political entity 4. Restriction of privileges and immunities 5. evidence 6. order of the yang di-pertuan agong 7. saving for certain bilateral arrangements 8. Remission of taxes, charges, duties and fees 9. authority to hold land in malaysia Schedule Diplomatic Privileges (Vienna Convention) 5 LAWS OF MALAYSIA Act 636 DIpLOMAtIc prIvILegeS (vIennA cOnventIOn) Act 1966 an act to amend the law on diplomatic privileges and immunities by giving effect to the vienna Convention on diplomatic Relations (signed in 96 ) and for other matters connected therewith. [9 december 965] WhereaS article 5 of the vienna Convention on diplomatic Relations signed in 96 provides: “( ) the present Convention shall come into force on the thirtieth day following the date of deposit of the twenty-second instrument of ratification or accession with the secretary General of the united nations. ( ) for each state ratifying or acceding to the Convention after the deposit of the twenty-second instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after deposit by such state of its instrument of ratification or accession.” and WhereaS the said twenty-second instrument of ratification was so deposited by the union of soviet socialist Republic on 5 march 964 and the Convention therefore came into force on 4 april 964: and WhereaS malaysia deposited her instrument of accession on 9 november 965 and therefore in accordance with the said article 5 the Convention came into force as far as malaysia is concerned on 9 december 965: noW, Therefore It IS enActeD by the parliament of malaysia as follows: Short title, commencement and application 1. ( ) this act may be cited as the diplomatic privileges (vienna Convention) act 966 and shall be deemed to have come into force on 9 december 965. 6 Laws of Malaysia Act 636 ( ) this act shall apply throughout malaysia. 2. *(Omitted). Application of vienna convention 3. ( ) subject to section 4, the articles set out in the schedule (being articles of the vienna Convention on diplomatic Relations signed in 96 ) shall have the force of law in malaysia and shall for that purpose be construed in accordance with the following provisions of this section. ( ) in those articles— “agents of the receiving state” shall be construed as including any police officer and any person exercising a power of entry to any premises under any written law in force in malaysia; “national of the receiving state” shall be construed as meaning a federal citizen. (3) for the purposes of article 3 , a waiver by the head of a mission of any state or any person for the time being performing his functions shall be deemed to be a waiver by that state. (4) articles 35, 36 and 40 shall be construed as granting any privilege or immunity which they require to be granted. (5) the references in articles 37 and 38 to the extent to which any privileges and immunities are admitted by the receiving state and to the additional privileges and immunities that may be granted by the receiving state shall be construed as referring respectively to the extent to which any privileges and immunities may be specified by the yang di-pertuan agong by order published in the Gazette and to any additional privileges and immunities that may be so specified. Application of Act to specified body or political entity 3A. the provisions of this act shall, to such extent and with such modifications as the yang di-pertuan agong may deem necessary, *NOte—this section refers to the diplomatic and Consular privileges ordinance 957 [F.M. 53 of 1957] which has been repealed—see section 5 of act a 064. Diplomatic Privileges (Vienna Convention) 7 apply in respect of such body or political entity as he may by *order published in the Gazette specify. restriction of privileges and immunities 4. ( ) if it appears to the yang di-pertuan agong that the privileges and immunities accorded to a mission of malaysia in the territory of any state, or to persons connected with that mission, are less than those conferred by this act on the mission of that state or on persons connected with that mission, the yang di-pertuan agong may by an order published in the Gazette withdraw such of the privileges and immunities so conferred from the mission of that state or from such persons connected with it as appears to him to be proper. ( ) an order under this section shall be disregarded for the purpose of subsection ( ) of part i and subsection ( ) of part ii of the second schedule to the Constitution (relating to citizenship of children of certain persons possessing diplomatic immunity). evidence 5. if in any proceedings any question arises whether or not any person is entitled to any privilege or immunity under this act, a certificate issued by or under the authority of the minister stating any fact relating to that question shall be conclusive evidence of that fact. Order of the Yang di-pertuan Agong 6. ( ) no recommendation shall be made to the yang di-pertuan agong to make an order under subsection 3(5) unless a draft thereof has been laid before parliament and approved by resolution of each house of parliament; and any statutory instrument containing an *NOte—the following orders have been made: . diplomatic privileges (vienna Convention) (palestine liberation organization) order 98 —see p.u.(a) 7 / 98 . . diplomatic privileges (vieena Convention) (brunei Government agency) order 98 —see p.u.(a) 93/ 98 . 8 Laws of Malaysia Act 636 order under section 3 shall be subject to annulment in pursuance of a resolution of either house of parliament. ( ) any power to make an order conferred by this act includes power to vary or revoke an order by a subsequent order. Saving for certain bilateral arrangements 7. ( ) where any special agreement or arrangement between the Government of any state and the Government of malaysia in force at the commencement of this act provides for extending— (a) such immunity from jurisdiction and from arrest or detention, and such inviolability of residence, as are conferred by this act on a diplomatic agent; or (b) such exemption from customs duties, taxes and related charges as is conferred by this act in respect of articles for the personal use of a diplomatic agent, to any class of person, or to articles for the personal use of any class of person, connected with the mission of that state, that immunity and inviolability or exemption shall so extend, so long as that agreement or arrangement continues in force. ( ) the minister shall publish in the Gazette a notice specifying the states with which and the classes of person with respect to which such an agreement or arrangement as is mentioned in subsection ( ) is in force and whether its effect is as mentioned in paragraph (a) or (b) of that subsection, and shall whenever necessary amend the notice by a further such notice; and the notice shall be conclusive evidence of the agreement or arrangement and the classes of person with respect to which it is in force. remission of taxes, charges, duties and fees 8. the yang di-pertuan agong may provide that any tax, charge, duty or fee, imposed or collected under any written law in force in malaysia or in any constituent state in malaysia or any part thereof by the Government of malaysia or of any such constituent state or by any municipality, town board or other public authority in malaysia, and payable by the Government of any state or by Diplomatic Privileges (Vienna Convention) 9 a head of mission or by a member of the diplomatic staff of the mission of that state, shall be remitted when, in the opinion of the yang di-pertuan agong, such remission should be granted by reason of the treatment accorded to the Government of malaysia by that state. Authority to hold land in Malaysia 9. ( ) notwithstanding the provisions of any written law to the contrary it shall be lawful for land in any part of malaysia or any interest in such land to be granted, alienated, leased or transferred to or owned or held by— (a) any state— (i) for the purposes of the residence or offices of the head of mission of that state or of his diplomatic staff; or (ii) for such other diplomatic purposes as may be approved by the minister; or (b) any state that is authorized or entitled to own or hold land or any interest in land in malaysia under any treaty, convention or agreement to which malaysia is a party, for any purpose specified in such treaty, convention or agreement. ( ) where by virtue of subsection ( ), it is lawful for land or an interest in land to be granted, alienated, leased or transferred to or owned or held by any state, such land or interest may be granted, alienated, leased or transferred to or owned or held by that state in its own name or on its behalf to or by any person nominated for the purposes of this subsection either generally or in a particular case by writing addressed to the minister by or on behalf of that state and that state or person, as the case may be, shall be registered accordingly as proprietor, lessee or otherwise, as the case may require, in any register kept under the provisions of the national land Code [Act 56 of 1965], the land ordinance of sabah [Sabah Cap. 68] or the land Code of sarawak [Sarawak Cap. 81], as the case may be. (3) for the purposes of subsection ( ), a state may nominate a body corporate incorporated by or under the laws of malaysia or of that state or an individual person nominated by name or by the title of any office held by him in the government of that state 0 Laws of Malaysia Act 636 and where any person is nominated by the title of an office any right, power or obligation to which by virtue of his nomination he may be entitled or liable at the date of his vacating his office shall be deemed to pass to or be imposed on his successors for the time being in such office in all respects as if the holder of such office had been a corporation sole. (4) a nomination made under subsection ( ) may at any time be cancelled and a fresh nomination made in the manner provided by that subsection and in that event any right, power or obligation to which by virtue of his nomination the person formerly nominated was at the date of the cancellation of his nomination entitled or liable shall be transferred to the person last nominated in such manner as may be provided by rules made under subsection (6). (5) for the purpose of any dealing in any land or interest in any land vested in the name of a state, any person authorized for the purposes of this subsection either generally or in any particular case by writing addressed to the minister by or on behalf of that state may, by virtue of such authorization, execute all or any instruments and do any other act or thing for giving effect to any dealing with such land on behalf of that state in the same manner and to the like extent as if such person had been authorized thereto by a valid power of attorney duly delivered under the provisions of the national land Code, the land ordinance of sabah or the land Code of sarawak, as the case may be. (6) the yang di-pertuan agong may make rules for the purpose of carrying this section into effect. Diplomatic Privileges (Vienna Convention) Schedule [section 3] aRtiCles of the vienna Convention on diplomatiC Relations ( 96 ) havinG the foRCe of law in malaysia Article 1 for the purpose of the present Convention, the following expressions shall have the meanings hereunder assigned to them: (a) the “head of the mission” is the person charged by the sending state with the duty of acting in that capacity; (b) the “members of the mission” are the head of the mission and the members of the staff of the mission; (c) the “members of the staff of the mission” are the members of the diplomatic staff, of the administrative and technical staff and of the service staff of the mission; (d) the “members of the diplomatic staff” are the members of the staff of the mission having diplomatic rank; (e) a “diplomatic agent” is the head of the mission or a member of the diplomatic staff of the mission; (f) the “members of the administrative and technical staff” are the members of the staff of the mission employed in the administrative and technical service of the mission; (g) the “members of the service staff” are the members of the staff of the mission, in the domestic service of the mission; (h) a “private servant” is a person who is in the domestic service of a member of the mission and who is not an employee of the sending state; (i) the “premises of the mission” are the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of the mission. Article 22 . the premises of the mission shall be inviolable. the agents of the receiving state may not enter them, except with the consent of the head of the mission. . the receiving state is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. Laws of Malaysia Act 636 3. the 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. Article 23 . the sending state and the head of the mission shall be exempt from all national, regional or municipal dues and taxes in respect of the premises of the mission, whether owned or leased, other than such as represent payment for specific services rendered. . the exemption from taxation referred to in this article shall not apply to such dues and taxes payable under the law of the receiving state by persons contracting with the sending state or the head of the mission. Article 24 the archives and documents of the mission shall be inviolable at any time and wherever they may be. Article 27 . the receiving state shall permit and protect free communication on the part of the mission for all official purposes. in communicating with the Government and other missions and consulates of the sending state, wherever situated, the mission may employ all appropriate means, including diplomatic couriers and messages in code or cipher. however, the mission may install and use a wireless transmitter only with the consent of the receiving state. . the official correspondence of the mission shall be inviolable. official correspondence means all correspondence relating to the mission and its functions. 3. the diplomatic bag shall not be opened or detained. 4. the packages constituting the diplomatic bag must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use. 5. the diplomatic courier, who shall be provided with an official document indicating his status and the number of packages constituting the diplomatic bag, shall be protected by the receiving state in the performance of his functions. he shall enjoy personal inviolability and shall not be liable to any form of arrest or detention. 6. the sending state or the mission may designate diplomatic couriers ad hoc. in such cases the provisions of paragraph 5 of this article shall also apply, except that the immunities therein mentioned shall cease to apply when such a courier has delivered to the consignee the diplomatic bag in his charge. Diplomatic Privileges (Vienna Convention) 3 7. a diplomatic bag may be entrusted to the captain of a commercial aircraft scheduled to land at an authorized port of entry. he shall be provided with an official document indicating the number of packages constituting the bag but he shall not be considered to be a diplomatic courier. the mission may send one of its members to take possession of the diplomatic bag directly and freely from the captain of the aircraft. Article 28 the fees and charges levied by the mission in the course of its official duties shall be exempt from all dues and taxes. Article 29 the person of a diplomatic agent shall be inviolable. he shall not be liable to any form of arrest or detention. the receiving state shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity. Article 30 . the private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission. . his papers, correspondence and, except as provided in paragraph 3 of article 3 , his property, shall likewise enjoy inviolability. Article 31 . a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving state. he shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of— (a) a real action relating to private immovable property situated in the territory of the receiving state, unless he holds it on behalf of the sending state for the purposes of the mission; (b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending state; (c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions. . a diplomatic agent is not obliged to give evidence as a witness. 3. no measures of execution may be taken in respect of a diplomatic agent except in the cases coming under subparagraphs(a),(b) and (c) of paragraph 4 Laws of Malaysia Act 636 of this article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence. 4. the immunity of a diplomatic agent from the jurisdiction of the receiving state does not exempt him from the jurisdiction of the sending state. Article 32 . the immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under article 37 may be waived by the sending state. . the waiver must always be express. 3. the initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction under article 37 shall preclude him from invoking immunity from jurisdiction in respect of any counter-claim directly connected with the principal claim. 4. waiver of immunity from jurisdiction in respect of civil or 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. Article 33 . subject to paragraph 3 of this article, a diplomatic agent shall with respect to services rendered for the sending state be exempt from social security provisions which may be in force in the receiving state. . the exemption provided for in paragraph of this article shall also apply to private servants who are in the sole employ of a diplomatic agent, on condition: (a) that they are not nationals of or permanently resident in the receiving state; and (b) that they are covered by the social security provisions which may be in force in the sending state or a third state. 3. a diplomatic agent who employs persons to whom the exemption provided for in paragraph of this article does not apply shall observe the obligations which the social security provisions of the receiving state impose upon employers. 4. the exemption provided for in paragraphs and of this article shall not preclude voluntary participation in the social security system of the receiving state provided that such participation is permitted by that state. 5. the provisions of this article shall not affect bilateral or multilateral agreements concerning social security concluded previously and shall not prevent the conclusion of such agreements in the future. Diplomatic Privileges (Vienna Convention) 5 Article 34 a diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional or municipal, except: (a) indirect taxes of a kind which are normally incorporated in the price of goods or services; (b) dues and taxes on private immovable property situated in the territory of the receiving state, unless he holds it on behalf of the sending state for the purposes of the mission; (c) estate, succession or inheritance duties levied by the receiving state, subject to paragraph 4 of article 39; (d) dues and taxes on private income having its source in the receiving state and capital taxes on investments made in commercial undertakings in the receiving state; (e) charges levied for specific services rendered; (f) registration, court or record fees, mortgage dues and stamp duty, with respect to immovable property, subject to article 3. Article 35 the receiving state shall exempt diplomatic agents from all personal services, from all public service of any kind whatsoever, and from military obligations such as those connected with requisitioning, military contributions and billeting. Article 36 . the receiving state shall, in accordance with such laws and regulations as it may adopt, permit entry of and grant exemption from all customs duties, taxes, and related charges other than charges for storage, cartage and similar services, on: (a) articles for the official use of the mission; (b) articles for the personal use of a diplomatic agent or members of his family forming part of his household, including articles intended for his establishment. . the personal baggage of a diplomatic agent shall be exempt from inspection, unless there are serious grounds for presuming that it contains articles not covered by the exemptions mentioned in paragraph of this article, or articles the import or export of which is prohibited by the law or controlled by the quarantine regulations of the receiving state. such inspection shall be conducted only in the presence of the diplomatic agent or of his authorized representative. 6 Laws of Malaysia Act 636 Article 37 . the members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving state, enjoy the privileges and immunities specified in articles 9 to 36. . members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, shall, if they are not nationals of or permanently resident in the receiving state, enjoy the privileges and immunities specified in articles 9 to 35, except that the immunity from civil and administrative jurisdiction of the receiving state specified in paragraph of article 3 shall not extend to acts performed outside the course of their duties. they shall also enjoy the privileges specified in article 36, paragraph , in respect of articles imported at the time of first installation. 3. members of the service staff of the mission who are not nationals of or permanently resident in the receiving state shall enjoy immunity in respect of acts performed in the course of their duties, exemption from dues and taxes and on the emoluments they receive by reason of their employment and the exemption contained in article 33. 4. private servants of members of the mission shall, if they are not nationals of or permanently resident in the receiving state, be exempt from dues and taxes on the emoluments they receive by reason of their employment. in other respects, they may enjoy privileges and immunities only to the extent admitted by the receiving state. however, the receiving state must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission. Article 38 . except insofar as additional privileges and immunities may be granted by the receiving state, a diplomatic agent who is a national of or permanently resident in that state shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his functions. . other members of the staff of the mission and private servants who are nationals of or permanently resident in the receiving state shall enjoy privileges and immunities only to the extent admitted by the receiving state. however, the receiving state must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission. Article 39 . every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving state on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the ministry for foreign affairs or such other ministry as may be agreed. Diplomatic Privileges (Vienna Convention) 7 . when the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. however, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist. 3. in case of the death of a member of the mission, the members of his family shall continue to enjoy the privileges and immunities to which they are entitled until the expiry of a reasonable period in which to leave the country. 4. in the event of the death of a member of the mission not a national of or permanently resident in the receiving state or a member of his family forming part of his household, the receiving state shall permit the withdrawal of the movable property of the deceased, with the exception of any property acquired in the country the export of which was prohibited at the time of his death. estate, succession and inheritance duties shall not be levied on movable property the presence of which in the receiving state was due solely to the presence there of the deceased as a member of the mission or as a member of the family of a member of the mission. Article 40 . if a diplomatic agent passes through or is in the territory of a third state, which has granted him a passport visa if such visa was necessary, while proceeding to take up or to return to his post, or when returning to his own country, the third state shall accord him inviolability and such other immunities as may be required to ensure his transit or return. the same shall apply in the case of any members of his family enjoying privileges or immunities who are accompanying the diplomatic agent, or travelling separately to join him or to return to their country. . in circumstances similar to those specified in paragraph of this article, third states shall not hinder the passage of members of the administrative and technical or service staff of a mission, and of members of their families, through their territories. 3. third states shall accord to official correspondence and other official communications in transit, including messages in code or cipher, the same freedom and protection as is accorded by the receiving state. they shall accord to diplomatic couriers, who have been granted a passport visa if such visa was necessary, and diplomatic bags in transit the same inviolability and protection as the receiving state is bound to accord. 4. the obligations of third states under paragraphs , and 3 of this article shall also apply to the persons mentioned respectively in those paragraphs, and to official communications and diplomatic bags, whose presence in the territory of the third state is due to force majeure. 8 Laws of Malaysia Act 636 LAWS OF MALAYSIA Act 636 DIpLOMAtIc prIvILegeS (vIennA cOnventIOn) Act 1966 list of amendments amending law short title in force from act a534 diplomatic privileges (vienna 3-0 - 98 Convention) (amendment) act 98 act a 064 diplomatic privileges (vienna 03-09- 999 Convention) (amendment) act 999 Diplomatic Privileges (Vienna Convention) 9 LAWS OF MALAYSIA Act 636 DIpLOMAtIc prIvILegeS (vIennA cOnventIOn) Act 1966 list of seCtions amended section amending authority in force from 3 act a 064 03-09- 999 3a act a534 3-0 - 98 4 act a 064 03-09- 999 8 act a 064 03-09- 999 9 act a 064 03-09- 999