Apex court judgment sets limits to Singapore censorship law's reach in Malaysia

The Federal Court in a significant judgment delivered yesterday addressed the extraterritorial application of Singapore’s Protection from Online Falsehoods and Manipulation Act (Pofma) and the broader issue of state sovereignty.

The case was initiated by Lawyers for Liberty (LFL) following a correction direction issued by Singapore’s Home Affairs Minister, K Shanmugam.

On Jan 16 2020, LFL published a press statement accusing Singapore of employing “unlawful and brutal” methods in executions.

This prompted Singapore’s Ministry of Home Affairs to issue a correction direction under Pofma on January 22, 2020.

The directive required LFL to insert a correction notice alongside its statement by the following day, warning that failure to comply would constitute an offence under Singaporean law.

Just a day after LFL’s non-compliance in putting up the notice, internet service providers were instructed to block access to LFL’s website.

Failure to comply with a Part 3 Direction under POFMA carries significant penalties. Individuals may face fines of up to S$20,000, imprisonment of up to 12 months, or both. Organisations, meanwhile, can incur fines up to S$500,000.

LFL responded, stating that the Singapore government’s move to block its website was an attempt to silence them and described it as “disappointing”.

It also pointed out that it had made multiple attempts to contact the Singapore government to discuss the alleged judicial execution methods in Changi Prison.

Initially, LFL filed two suits in Malaysia to challenge the directive.

The first suit was against the Malaysian government, seeking a declaration that LFL could not be subjected to any process within Malaysia to enforce Singaporean law. It also sought protection under Malaysia’s Federal Constitution, which guarantees freedom of expression under Article 10(1)(a).

The second suit targeted Singapore’s home affairs minister, seeking a declaration that the correction direction could not be enforced against LFL in Malaysia, including any potential criminal charges for non-compliance.

On Dec 23 2020, the Kuala Lumpur High Court granted leave to the attorney-general (AG) to intervene in the second suit.

Subsequently, the Malaysian government and AG applied to strike out both suits, arguing that a certificate issued by the Yang di-Pertuan Agong on April 16 2020 recognised Singapore as a foreign sovereign.

As such, they contended that Singapore enjoyed immunity regarding the correction direction and the minister’s actions.

On June 10 2021, the high court allowed the strike-out applications, upholding Singapore’s sovereign immunity and dismissing LFL’s challenges on procedural grounds.

However, LFL successfully appealed to the Court of Appeal on July 20, 2022. The appellate court overturned the high court’s decision and ordered both suits to be remitted to the high court for a full trial before a different judge, allowing the substantive issues to be argued.

In response, the Malaysian government and AG sought recourse in the Federal Court, challenging the appeals court’s ruling.

The Federal Court’s judgment focused on two principal issues:

• The applicability of sovereign immunity.
• The extraterritorial enforcement of Pofma and its compatibility with Malaysia’s Federal Constitution.

Sovereign immunity and extraterritorial jurisdiction

The Federal Court ruled that the actions of Singapore’s home minister were sovereign acts undertaken in an official capacity.

As such, they were protected by state immunity, a principle under international law that shields foreign states and their officials from litigation in another state’s courts.

Consequently, the court struck out LFL’s requests for injunctive relief and any declarations challenging the enforcement of Pofma by Singaporean officials in Malaysia.

In their submissions, the Malaysian government and the AG argued that the certificate issued by the Agong recognising Singapore as a foreign sovereign conclusively established state immunity.

They contended that the minister’s actions under Pofma constituted public acts (jure imperii) and fell squarely within the scope of immunity.

LFL, however, argued that immunity should not apply when fundamental rights are at stake.

They contended that the extraterritorial application of Pofma to a Malaysian entity violated their right to freedom of expression under Article 10(1)(a) of the Federal Constitution. LFL further cited international legal principles that limit sovereign immunity in cases where rights to access justice and freedom of speech are implicated.

On the issue of extraterritoriality, the Federal Court acknowledged the unique complexities involved.

While it upheld state immunity regarding the minister’s actions, it found that Singapore’s directive against LFL not only involved its domestic laws but also potentially encroached upon constitutional rights guaranteed under Malaysian law.

The court unanimously allowed LFL’s application to proceed on this point, particularly to examine whether Pofma’s extraterritorial application is enforceable against a Malaysian citizen or organisation.

The court clarified that the high court should deliberate on this issue, focusing on its compatibility with Article 10(1)(a) of the Federal Constitution.

Implications for cross-border enforcement

The judgment has critical implications for both states. For Singapore, it underscores the limitations of extraterritorial enforcement of its laws in Malaysia.

The Federal Court’s emphasis on state sovereignty and constitutional guarantees signals a robust defence of domestic jurisdiction against foreign legal encroachments.

For Malaysia, the judgment provides clarity on the legal thresholds for challenging extraterritorial claims and highlights the need to balance international law principles with constitutional rights.

The case also sets a precedent for evaluating the jurisdictional limits of foreign laws impacting Malaysian citizens or entities.

In response to the Federal Court’s ruling, LFL welcomed the decision to proceed with the trial on the extraterritorial reach of Singapore’s Pofma.

“We are very glad that the Federal Court has ordered the suit to trial on the crucial question of whether Singapore can extend the operation of its penal laws extraterritorially across the causeway. This issue is particularly important for activists, campaigners, concerned citizens, civil society, and advocacy bodies, both regional and international,” said a spokesman for LFL.

They further criticised the actions of Singapore’s home minister, calling it a diplomatic misstep:

“It is impolitic, imprudent, and dangerous for Mr Shanmugam to have pursued this matter to the extent that Malaysian courts must now pronounce on the reach and operation of Singapore laws extraterritorially. It is, in fact, a diplomatic bungle and embarrassing. It is unclear how Mr Shanmugam can extricate himself from this.”

Criminal charges 

A key element of the case lies in the potential personal charges against LFL for its non-compliance with the correction direction.

Under Pofma, such non-compliance constitutes an offence, raising the stakes for the NGO. This aspect amplified the significance of the Federal Court’s decision, as it directly impacts LFL’s exposure to cross-border legal actions.

The Federal Court made it clear that the substantive issue of whether Pofma’s provisions can override Malaysia’s constitutional protections must be resolved in the High Court.

This deliberation will determine whether Singapore’s enforcement efforts, including possible criminal charges, can extend to Malaysian jurisdiction.

This report is republished from The Online Citizen.