PUTRAJAYA – The government of Malaysia and attorney-general have obtained leave to proceed with their appeals to the Federal Court to strike out two suits brought by Lawyers for Liberty (LFL) against the Malaysian and Singapore governments.
A three-member panel of the Federal Court led by Chief Judge of Sabah and Sarawak Datuk Abdul Rahman Sebli held that the Malaysian government and attorney-general have passed the threshold requirement under Section 96 of the Courts of Judicature Act 1964 for leave to be given to them to proceed with their appeals.
The other two members of the panel were Federal Court judges Datuk Zabariah Mohd Yusof and Datuk Seri Hasnah Mohammed Hashim.
Senior federal counsel Liew Horng Bin, who appeared for the Malaysian government and attorney-general, wants the Federal Court to deliberate and decide on seven questions of law.
Among the questions are whether in the face of the certificate issued by the Yang di-Pertuan Agong recognising a country as a foreign sovereign, the Malaysian court has the jurisdiction to ventilate on the country’s foreign law.
The next question is whether the Malaysian court can exercise jurisdiction when the issue of sovereign immunity over a foreign governmental act is raised, and the third question is whether the Malaysian court has jurisdiction to adjudicate over the conduct of a foreign state for an act of jure imperri (by right of sovereignty).
Following the Federal Court’s decision to grant leave to the government and attorney-general, the Federal Court will hear the merits of appeals at another date to be fixed later.
The two suits were filed by LFL in 2020 after Singapore, under its Protection from Online Falsehoods and Manipulation Act, directed the rights group to insert a correction notice relating to its press statement that was published on its website alleging that brutal and unlawful methods were used to execute prisoners in Singapore’s Changi prison.
LFL filed the first suit against the government of Malaysia, seeking a declaration, among others, that LFL cannot be subjected to any process within Malaysia in furtherance of Singapore law.
The second suit filed by LFL was against the home affairs minister of Singapore, seeking a declaration that the correction direction cannot be enforced against the rights group in Singapore.
On December 23, 2020, the high court granted leave to the attorney-general to intervene in the second suit.
Both the Malaysian government and attorney-general then applied to strike out both suits on grounds that by a certificate issued by the Yang-di-Pertuan Agong dated April 16, 2020, Malaysia recognises Singapore as a foreign sovereign and therefore Singapore enjoys immunity in respect of the correction direction and the Singapore minister’s decision.
The high court on June 10, 2021 allowed the Malaysian government and attorney-general’s applications to strike out the suits.
However, on July 20, 2022 the Court of Appeal overturned the high court’s decision after allowing LFL’s appeal.
It ordered the suits to be remitted back to the high court for full trial before another high court judge, prompting the Malaysian government and attorney-general to file for leave to appeal to the Federal Court.
In the proceedings conducted online today, lawyer Datuk Gurdial Singh Nijar argued that the Court of Appeal was correct to order the suits to go for full trial. – Bernama, May 16, 2023
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