PUTRAJAYA (June 28): The Malaysian Attorney General’s Chambers has succeeded in preventing Malaysian non-governmental organisation Lawyers for Liberty (LFL) from suing the Singaporean government for issuing a Protection from Online Falsehoods and Manipulation Act (Pofma) order against LFL in 2020.

This follows the Federal Court allowing the AGC’s appeal to strike out a suit filed by LFL against the Singapore government, represented by its Minister of Home Affairs K Shanmugam.

The island republic had issued the Pofma order against LFL, requiring the human rights and law reform NGO to insert a correction notice on top of an article published on its website, which the Ministry of Home Affairs said contained "untrue, baseless and preposterous allegations about judicial executions conducted in Changi Prison".

However, the five-member apex court bench dismissed the Malaysian government’s appeal against LFL’s attempt to restrain the Malaysian government from assisting their Singapore counterpart in enforcing the order. This matter will be heard at the High Court.

Court of Appeal president Tan Sri Abang Iskandar Abang Hashim said the LFL suit will be heard at the High Court in Kuala Lumpur on the question of law, where the NGO is seeking “a declaration as to the extra-territorial jurisdiction of Pofma in relation to a Malaysian citizen in Malaysia in light Art 10 (1)(a) of the Federal Constitution.”

Article 10 (1) (a) concerns the right to freedom of expression.

In the unanimous decision, Abang Iskandar said the High Court was to purely determine on the questions of law.

He made no order as to costs.

In his broad grounds, the Court of Appeal president said the bench views the appeals dealt with two issues.

“Firstly, sovereign or state immunity; and secondly, extra-territoriality. With respect to the appeal on the Singapore Home Minister issue, it relates to the first issue (immunity).

“The doctrine of sovereign or state immunity as recognised under the principle of public international law as well as local case law in Malaysia requires that the court treats this issue as a threshold one as decided in the case of Datuk Param Cumaraswamy and Datuk N Sundra Rajoo,” he said.

Abang Iskandar said in the two cases, it was clear that it is a public act of a sovereign state in relation to its governmental function.

Therefore there can be no dispute that this attracts state immunity. The exceptions under the restricted immunity regime largely encompass commercial, employment and other such exceptions. Therefore, the duty of the Malaysian courts to respect the immunity of the prescriptive jurisdiction of the Singapore Parliament is clear.”

In this respect, the top judge said the certificate issued by the Yang di-Pertuan Agong (on immunity) is clear to the extent that the court is unable to exercise any adjudicative jurisdiction over the acts of a sovereign nation which includes the Singapore home minister.

With regards to the other matter on the Malaysian government’s enforcement of Pofma against LFL, Abang Iskandar said it relates primarily to extra-territoriality.

“It is the main subject matter of the other LFL originating summons. It does not encroach into state or sovereign immunity, but involves only Malaysian parties over which our courts enjoy jurisdiction. It also entails construction of the Federal Constitution.

“LFL expressed concern and sought clarification on the extent of their rights of freedom of expression under Article 10(1)(a) of the FC in relation to statements made in Malaysia which are the subject matter of foreign legislation, namely Pofma. This in effect amounts to an issue related to the extra territorial jurisdiction of Pofma,” he said adding that for this reason, in their view, the appeal by the government was dismissed.

"Singapore has no business interfering with the freedom of speech of Malaysian citizens making statements within our own country," LFL had said.

The others who sat with him in the unanimous decision were Federal Court judges Tan Sri Nallini Pathmanathan, Datuk Zabariah Mohd Yusof, Datuk Rhodzhariah Bujang and Datuk Hanipah Farikullah.

The Attorney General’s Chambers, represented by senior federal counsels Shamsul Bolhassan and Liew Horng Bin, were appealing the Court of Appeal’s decision made on July 20, 2022, that reinstated the suit against Shanmugam, and also ordered the LFL suit to go on trial back at the High Court.

LFL was represented by Datuk Gurdial Singh Nijar, Latheefa Koya, Shahid Adli Kamaruddin and Abraham Au.

The High Court had struck out LFL’s lawsuit in 2020 after allowing the AGC’s action.

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