Govt, AG get leave to proceed with appeals to strike out LFL suits

The government and the attorney-general (AG) 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 the chief judge of Sabah and Sarawak Abdul Rahman Sebli held that the government and AG 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 Zabariah Mohd Yusof and Hasnah Mohammed Hashim.

Senior federal counsel Liew Horng Bin, who appeared for the government and AG, wants the Federal Court to deliberate and decide on seven questions of law.

Among the questions is 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.
 
Another 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 AG, 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 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 minister for home affairs of Singapore, seeking a declaration that the correct direction cannot be enforced against the rights group in Singapore.
 
On Dec 23, 2020, the High Court granted leave to the AG to intervene in the second suit. 

The Malaysian government and AG then applied to strike out both suits on grounds that Malaysia, in a certificate issued by the Yang-di-Pertuan Agong dated April 16, 2020, recognises Singapore as a foreign sovereign and therefore Singapore enjoys immunity in respect of the correct direction and the Singapore minister's decision.

The High Court on June 10, 2021, allowed the Malaysian government and AG'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 AG to file for leave to appeal to the Federal Court.

In the proceedings conducted online today, lawyer Gurdial Singh Nijar argued that the Court of Appeal was correct to order the suits to go to full trial.