LFL SDN BHD v Kerajaan Malaysia (WA-24-46-09/2020)

This is an appeal against the court's decision (Enclosure 52), in which the LFL Sdn Bhd's claim ("Plaintiff") against the Kerajaan Malaysia (Defendant) was dismissed without any costs being awarded to either party.

The court will now provide a detailed explanation of its reasoning. The references to the parties in this judgment correspond to those used in the High Court proceedings.

The facts and background of this case are quoted from the arguments of both parties, which are not disputed.

On 16.01.2020, the Plaintiff released a press announcement concerning the execution methods of the death penalty in Singapore, claiming that unlawful and cruel techniques were being employed ("16th January Statement"). This announcement was made in Kuala Lumpur, Malaysia, and disseminated via email in Malaysia. The issuance of the statement was intended for the public good within the scope of the Plaintiff's objectives.

On 22.01.2020, a Correction Direction ("Correction Direction") pertaining to the 16th January Statement was delivered to the Plaintiff via email, following Section 11 of Protection from Online Falsehood and Manipulation Act 2019 ("POFMA"). The Correction Direction instructed the Plaintiff to publish a Correction Notice at the beginning of the 16th January Statement on the Plaintiff's website by no later than 23.01.2020. The said Correction Notice is reproduced below: "CORRECTION NOTICE: This article contains false statements of fact made by Lawyers for Liberty. The Singapore Prison Service does not use any of the steps in the alleged procedure for judicial executions. For the correct facts, click here: http://www.gov.sg/article/factually-clarifications onfalsehoods-posted-by-lawyers-for-liberty"

Not adhering to the Correction Direction without a legitimate reason constitutes an offense under Section 15 of POFMA. According to Section 15, if the Plaintiff does not follow the Correction Direction, they could theoretically face a penalty of up to $500,000.00.

Furthermore, on 22.01.2020, the Ministry of Home Affairs in Singapore released a public announcement declaring that the statement from January 16 is untrue and confirming that the Correction Direction was issued.

On the same date, the Plaintiff released a public statement denying the announcement from the Singapore Ministry of Home Affairs. The Plaintiff released another press statement on 22.01.2020 (the '22nd Article') on their website, demanding that the Singapore Government withdraw the Correction Direction, contending amongst others that Singapore cannot interfere with the freedom of speech of Malaysians in Malaysia and that Singapore is attempting to extend its jurisdiction to Malaysians in Malaysia.

Prior to initiating the current legal action, the Plaintiff filed Originating Summons WA-24-51-10/2020 against Singapore's Minister of Home Affairs ("OS 51"). In OS 51, the plaintiff requested the following remedies from Singapore's Minister of Home Affairs: a) a declaration that the direction issued by the Singapore Home Affairs Minister could not be enforced against the Plaintiff in Malaysia; b) a declaration that the Singapore Home Affairs Minister, or anyone acting under his authority, could not take any action to enforce any provision of the POFMA against the Plaintiff within Malaysia; and c) an injunction to restrain the Singapore Home Affairs Minister, his servant or agents, or anyone acting under his direction from enforcing Singapore's laws, in particular the POFMA, or taking any action related thereto, within Malaysia against the Plaintiff.

The Plaintiff was ready to withdraw the action and informed the Singaporean Government of this in the event that the Government confirmed that it would not apply its laws to the Plaintiff, who is present in Malaysia at all relevant times. However, the Singaporean Government refused to do so.

Before OS 51 could be served on the Defendant named in OS 51, the Attorney General of Malaysia ("AG"), with the approval of the Court, on 22 December 2020, intervened in the proceedings. The AG argued through a striking out action that OS 51 is an abuse of court process and that the court lacks jurisdiction to rule on the validity of POFMA.

The Plaintiff argued that such conduct by the AG indicates that the Defendant failed to protect its citizens against the encroachment of foreign law,breaching Article 10(1)(a) of the Federal Constitution ("FC"). This allows a foreign law to operate extraterritorially, undermining the Plaintiff's right to freedom of speech. Consequently, the Plaintiff has filed the present OS.

Similar to OS 51, the Defendant also sought to strike out the present Originating Summons. Both striking out applications were allowed by the High Court on 10.6.2021.

On 20.7.2022, the Court of Appeal upheld the Plaintiff's appeal, overturning High Court orders that had permitted the striking out applications. Consequently, both OS 51 and the current OS were sent back to the High Court for rehearing. Subsequently, the Defendant and the AG of Malaysia obtained permission to appeal to the Federal Court, which issued its ruling on 28.6.2024. a) the Court allowed the appeal on the non-striking out of OS 51, and accordingly struck out OS 51; b) the Court ordered the present OS to proceed for a hearing, but only in respect of the following amended relief: "A declaration as to the extraterritorial jurisdiction of POFMA in relation to a Malaysian citizen in Malaysia in light of Article 10(1)(a) of the Federal Constitution." (see Kerajaan Malaysia v LFL Sdn Bhd [2024] MLJU 3015)

The Court also held that: i) overeign immunity applies to the Singapore Minister of Home Affairs in his exercise of a governmental function, i.e., the issuance of the impugned Correction Direction under section 11 of the Protection from Online Falsehood and Manipulation Act 2019 ('POFMA'), such that OS 51 filed by the Plaintiff against the said Minister was struck out (at [37]-[40]); ii) OS 46, which is confined to the question on the extra-territorial effect POFMA had in relation to a Malaysian citizen in light of Article 10(1)(a) of the Federal Constitution, is remitted for fresh consideration of the High Court on a prayer amended by the Federal Court, which reads (at [55]- [62]): "a declaration as to the extra-territorial jurisdiction of POFMA in relation to a Malaysian citizen in Malaysia in light of Article 10(1)(a) of the FC" iii) prayer 3 of the original OS 46, which seeks to prohibit any enforcement action or process initiated by the Singapore authority against the Plaintiff in Malaysia, was disallowed as it encroaches on state immunity (at [60]).

Based on that order, the prayers sought for in OS 46 were amended accordingly to reflect the decision of the Federal Court. The Re-Amended OS 46 is the Originating Summons as amended by the Federal Court. The amended OS 46 can be seen in Enclosure 52 as follows i) A declaration that the Plaintiff has a right to express their opinions in Malaysia with regard to any matter as part of their right to freedom of speech under Article 10(1)(a) of the Federal Constitution; and ii) A declaration as to the extra-territorial jurisdiction of the "Protection from Online Falsehood and Manipulation Act" in relation to a Malaysian citizen in Malaysia in light of Article 10(1)(a) of the Federal Constitution.

The pleaded case by the Plaintiff against the Defendant in OS 46 is singularly that the Government of Malaysia, through the conduct of the AG in applying to strike out the Plaintiff's OS 51 on ground of sovereign immunity enjoyed by the Singapore Minister of Home Affairs: '... has acted in breach of Article 10(1)(a) of the Federal Constitution. In essence, the Defendant is ready to allow a foreign law to be operationalise extra-territorially, by which the Plaintiff's right to freedom of speech would be subverted by a foreign law. The Defendant has, with respect, thus failed in the fulfilment of its duties to its citizenry' (at para [5]-[6] Amended OS 46 vide Enclosure 52) Plaintiff's Submission

(i) Extra-territorial jurisdiction of POFMA in relation to a Malaysian citizen in Malaysia in light of Article 10(1)(a) of the FC

The Plaintiff disputes the Defendant's argument that, as the Federal Court maintained Singapore's immunity, the AG's intervention and application for striking out cannot be deemed to have "acted in contravention of Article 10(1)(a) of the FC" or "had failed in the performance of its duty to its citizens."

At the outset, the Federal Court has stated in paragraph 61 that the determination by this Court is exclusively on issues of law, i.e., on the extra-territorial effect of POFMA. The Federal Court considered and ruled on the issue of state immunity. Yet, it ordered that OS 46 be proceeded for hearing in respect of the amended relief, i.e., a declaration as to the extra-territorial jurisdiction of POFMA in relation to a Malaysian citizen in Malaysia in light of Article 10(1)(a) of the FC.

There is a basis for OS 46, albeit on a slightly altered footing, as seen by the Federal Court's order to proceed with OS 46 in order to determine the amended relief.

Accordingly, it is inaccurate for the Defendant to claim that "the whole case for the Plaintiff against the Defendant as initially alleged in OS 46 is demolished."

The Plaintiff argues that in light of Article 10(1)(a) of the FC, an examination of the modified relief—that is, the declaration about POFMA's extra-territorial jurisdiction with regard to a Malaysian citizen in Malaysia—would show that it is not limited to POFMA's prescriptive authority. It calls for an examination of both the prescriptive and enforcement jurisdictions of POFMA.

The Plaintiff submits that it should also be noted that by disallowing Prayer 3 of OS 46 on the grounds that it encroaches on state immunity, the Federal Court, in paragraph 61 of the judgment, determined that a decision on the amended relief "does not encroach on state or sovereign immunity but involves only Malaysian parties over which our courts have jurisdiction."

Therefore, the question of immunity does not arise when determining the prescriptive jurisdiction of the Singapore legislature in promulgating POFMA.

The Plaintiff submits that although "non-justiciability" and the defence of foreign act of State are two separate doctrines, the Defendant does not seem to rely on them as distinct grounds.

In any event, the principle of 'non-justiciability' was described by Lord Justice Rix in Yukos Capital (No.2) [2014] QB 458, at paragraph 66, as "on the whole, not coming through as a doctrine separate from the act of state principle itself, but rather has, to a large extent, subsumed it as the paradigm restatement of that principle."

On the issue "one-voice principle", the Plaintiff submits that the Federal Court has considered it in paragraph 36 of the judgment: "[36] More recently, the UK Supreme Court in Deutsche Bank AG London Branch v Receivers Appointed by the Court [2021] UKSC 57 has held: "69. As the conduct of foreign relations is entrusted to the executive branch of government, this is a field where the judiciary must normally defer to the executive, which alone is competent to determine foreign policy. This is embodied in the "one voice principle" which finds its classic formulation in the speech of Lord Atkin in The Government of the Republic of Spain v SS "Arantzazu Mendi" [1939] AC 256, 264: "Our state cannot speak with two voices on such a matter,the judiciary saying one thing,the executive another. Our Sovereign has to decide whom he will recognise as a fellow sovereign in the family of states: and the relations of the foreign state with ours in the matter of state immunities must flow from that decision alone."

As a result, courts in this jurisdiction accept as conclusive statements made by the executive regarding certain questions of fact in the field of international affairs. These questions include the sovereign status of a state or government and whether an individual is to be regarded as a head of state (Mighell v. Sultan of Johore [1894] 1 QB 149; Carr v. Francis Times & Co [1902] AC 176).

Having considered the principle, the Federal Court applied the principle in paragraph 37 of the judgment: [37] In the instant appeals, the sovereign status of the Singaporean Minister for Home Affairs can be evinced from the certificate issued and produced by the Government of Malaysia. Based on our discussion above, it is evident that the issuance of a certificate from the Government of Malaysia amounts to conclusive evidence of a foreign state's sovereign status, which means that a foreign state, a head of state, or head of government acting in an official capacity shall enjoy immunity from the jurisdiction of the local courts. Accordingly, no proceedings may be instituted against them by any party (subject to the waiver of immunity and other exceptions)."

Consequentially, the Federal Court struck out OS 51, and had this to say at paragraph 39: [39] Appeal No.16 pivots on these aspects of state or sovereign immunity and therefore ought not be the subject matter of adjudication by the Malaysian Courts. The Court of Appeal erred in failing to address the existence of the certificate certifying Singapore as a sovereign state and in failing to treat state immunity as a threshold issue. Insofar as Appeal No.16 and OS 51 is concerned, it is not open to the Malaysian Courts to examine the merits of the suit."

Nonetheless, the Federal Court did not dismiss OS 46 on the same principle. Therefore, it is not for the Defendant to use this avenue to re-examine or review the Federal Court's decision in this regard.

The Defendant cited Lord Diplock in Buck v AG [1965] 1 All ER 882 to support its contention that the 'one-voice principle' applies, and it makes no difference in OS 46 where the Government of Malaysia is joined as the Defendant instead of the Singapore government. But, Buck v AG (supra) should be treated with caution. The issue in that case was a challenge against the validity of the constitution of a foreign independent sovereign state, where the foreign independent sovereign state in question-Sierra Leone-was not made a party. This is evident at page 770 of the judgment, per Lord Diplock: "The only subject-matter of this appeal is an issue as to the validity of a law of a foreign independent sovereign state, in fact, the basic law containing its constitution..."

Therefore, the Plaintiff submits that Buck v AG (supra) at 886- 887 should be distinguished from the present case as: a) OS 46 is not challenging the validity of the constitution of Singapore; b) Buck v AG is not a challenge against the effect of the constitution in the UK, or the impact of the constitution on the rights of the citizens of the UK.

Further, the subsequent part of the judgment delivered by Lord Diplock (at pages 886 to 887) indicated that, when the validity of a law from a foreign independent sovereign state arises as an incidental issue within the proceedings, the municipal court may not refuse to exercise jurisdiction. "... The validity of this law does not come in question incidentally in proceedings in which the High Court has undoubted jurisdiction, as, for instance, the validity of a foreign law might come in question incidentally in an action upon a contract to be performed abroad. The validity of the foreign law is what this appeal is about; it is about nothing else. This is a subject-matter over which the English courts, in my view, have no jurisdiction."

At this juncture, it suffices to state that OS 46 is not directly challenging the validity of POFMA, but its implication on a Malaysian citizen in Malaysia in light of Article 10(1)(a) of the FC.

The Plaintiff further submits that the argument concerning "the defence of foreign act of state" should have been raised earlier, specifically in the application to strike out. This issue challenges the court's authority or jurisdiction to rule on the validity of POFMA. While not invoking the doctrine in its strictest form, the Federal Court was clearly aware of the concept of "act of state", as evident from paragraph 38 of the judgment. [38] In this case, it is clear that the relevant acts complained of are public acts of a sovereign state in relation to its governmental function. In other words, the Singaporean Minister of Foreign Affairs is acting in his official capacity when committing the conduct complained of, and therefore, there can be no dispute that this attracts state immunity. As alluded to earlier, the exceptions under the restricted immunity regime largely encompass commercial, employment, and other such exceptions; exceptions which are plainly inapplicable here. To that extent, we are unable to exercise any adjudicative jurisdiction over the acts of a sovereign nation, which includes the act of the Home Minister of Singapore."

Although the Federal Court has already examined and deliberated on the issue of "act of state", it has determined that OS 46 should proceed and be argued on the amended relief. As a result, the Defendant should not be permitted a second opportunity to challenge this Court's jurisdiction over the substantive matter at hand.

Each foreign state has an obligation to respect the independence of other sovereign states, and courts in one nation are not permitted to evaluate or rule on official actions carried out by another government within its own borders (this principle is considered part of domestic law).

As a result, the Defendant must demonstrate that the act of state doctrine has been integrated into Malaysia's domestic common law, and that its application aligns with the interpretation established in the United Kingdom and other referenced legal jurisdictions.

Even though the act of State doctrine is a legal principle acknowledged and incorporated into our common law, it is not applicable in this instance. This is because the outcome of OS 46, or any ruling by this Court on the amended relief, would not impact the validity of POFMA within Singapore.

In this instance, the central question to be resolved under OS 46 concerns how the extraterritorial reach of POFMA interacts with Article 10(1) of the FC. Addressing this issue may require the Court to first assess whether Singapore has the prescriptive authority to apply POFMA beyond its borders. Given this context, the 'act of state' doctrine does not apply. Furthermore, in these proceedings, Singapore itself is not a party, and the declaration sought under OS 46 is directed exclusively at the Defendant. As such, the act of state doctrine is not relevant here.

The Plaintiff argues that the Defendant's position—that it cannot be held responsible for an organ of a foreign sovereign state in this matter—is fundamentally flawed. The amended claim in OS 46 does not aim to assign liability to the Defendant. Instead, it requests a declaratory judgment, as the matter raises constitutional issues. The Defendant clearly has an obligation to uphold the primacy of the FC and to safeguard the constitutional rights of its citizens.

Consequently, "domestic law considerations' must inherently encompass the FC, as it constitutes the supreme law of the land. This implies that the Government of Malaysia may be held accountable for the actions of an organ of a sovereign foreign state in OS 46, particularly in relation to duties or rights concerning the protection of its own citizens.

The Singapore Court of Appeal decided in The Online Citizen case that POFMA does not curtail either the positive right or negative right (not to be required to speak) to freedom of speech. That is in the context of Singapore law, and it is not binding on this Court. Therefore, the factor that this Court should consider is whether POFMA, a foreign legislation, can restrict the freedom of speech and expression of a Malaysian citizen as guaranteed by Article 10(1)(a) of the FC.

The claim that the Plaintiff actively participated in the appeal hearing before the Singapore Court of Appeal in The Online Citizen case was neither previously raised nor is it proper to introduce it now in written submissions as an established fact. Moreover, the issue raised in the amended Originating Summons 46 pertains to the constitutional rights of a Malaysian citizen—matters which fall outside the jurisdiction of the Singapore High Court to adjudicate. Consequently, Section 17 of POFMA cannot be considered a sufficient alternative remedy for the relief sought by the Plaintiff in OS 46, and therefore does not bar the pursuit of the declaratory relief requested in the. amended application.

It is puzzling that the Defendant now claims the Singapore Government qualifies as a 'proper contradictor', and therefore, because it is not present before the court, the declaratory relief sought in the amended OS 46 cannot be granted. This position runs counter to the Defendant's earlier stance on state immunity and its previous move to strike out OS 51. The Federal Court's judgment at paragraph 61 held: [61] We reiterate that the determination of OS 51 (OS 46) in the High Court is purely on questions of law, i.e., on the extra-territorial effect of POFMA. Extra-territoriality is the main subject matter of OS 51 (OS 46). As amended, 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."

The Federal Court has concluded that it is proper for this Court to consider and rule on the declaration requested in the amended OS 46, limited to matters involving Malaysian parties. Defendant's Submission

(i) Singapore legislature in promulgating POFMA

The Federal Court judgment has said in unambiguous terms that the scope of remittal of OS 46 was for the High Court to reconsider the "prescriptive" jurisdiction of the Singapore legislature in promulgating POFMA, which was said to have extraterritorial effect in Malaysia. The Federal Court held that Prayer 3 of OS 46 "encroaches on state immunity" and was therefore disallowed.

To summarize, Prayer 3 in OS 46 requested a declaration stating that the Plaintiff cannot be subjected to any legal proceedings in Malaysia aimed at enforcing Singapore law. The term "process" referred specifically to enforcement measures that Singapore authorities might pursue to compel compliance with POFMA's requirements.

In Prayer 3 of OS 46, the Federal Court explicitly rejected the aspect relating to the "enforcement" jurisdiction of the Singapore authority, and this decision is now final and binding on the High Court. To reiterate a clear point, the Federal Court's amended prayer in OS 46 was strictly limited to assessing the "prescriptive" jurisdiction of Singapore's legislature in enacting POFMA.

Whether a case engages a plea of sovereign immunity does not depend on whether a foreign government is impleaded, directly or indirectly, but rather on the "nature of the dispute" (Hii Yii Ann v Deputy Commissioner of Taxation of the Commonwealth of Australia & Ors [2018] 7 MLJ 393 at [64], citing as authority Lord Denning's observations in Rahimtoola v HEH The Nizam of Hyderabab and others [1958] AC 379 at p.422).

In this instance, the core issue in OS 46 concerns exclusively the legality of POFMA's extraterritorial reach. The Plaintiff's central argument in OS 46 is that POFMA does not apply beyond Singapore's borders, particularly in Malaysia. This position rests fundamentally on the question of whether the Singapore legislature had the authority to enact POFMA in a way that establishes criminal liability for acts occurring outside its territory.

As the local court is the forum in which the matter arises, it should be highly cautious before ruling on the validity of POFMA, a law passed by the Singapore legislature, an organ of a foreign sovereign government.

It is widely accepted that courts in a given jurisdiction will not assess the legality of actions taken by a foreign government if that government has been officially recognised by the jurisdiction as a sovereign state. This principle is commonly known as the "one voice principle": '... where Her Majesty's Government has recognised the existence of a foreign state, or a person or body as the government of a foreign state, the English Court is bound to treat the state as a sovereign state, and the government as the government of a sovereign state, in its determination of disputes before it. The Court does so because in this country the recognition of foreign states and governments is constitutionally part of the function of Her Majesty's Government as the executive branch of the state, and the Crown must speak with one voice in its executive and judicial functions in this aspect of international relations' (per Popplewell LJ in Mohamed v Breish [2020] EWCA Civ 637 " (see also the summary of cases on this 'one voice principle' discussed by Males LJ (with whom Lewison and Phillips LJJ concurred) in Maduro Board v Guuaido Board [2021] 1 All ER 719 at [91]-[111])

The actions of a foreign government encompass not only executive decisions but also legislative acts, as demonstrated in cases such as Jeyaretnam v Mahmood and others (1992), reported in The Times on 21 May; Luther v Sagor [1921] 3 KB 532; and Princess Paley Olga v Weisz [1929] 1 KB 718.

In the present case, the Federal Court recognised that OS 46 strikes at the core of the validity of POFMA insofar as it's purported "extraterritorial effect" in Malaysia (LFL Sdn Bhd (supra): [58] It is clear, therefore, that the question of whether Singapore possesses the necessary jurisdiction to prescribe in this instance involves an evaluation of multiple factors, such that this issue cannot be decided summarily for the purpose of striking out".

The Defendant submits that the sovereign character, i.e., the legislative competence of Singapore's Parliament, lies at the heartland of OS 46. The alleged unlawfulness of the exercise of legislative powers by the Singapore Parliament is "essential to the pleaded causes of action". As such, prima facie, the doctrine of foreign act of state is engaged.

In OS 46, the pleaded case of the Plaintiff against the Defendant can be seen at para [18]-[22] in the Plaintiff's Affidavit-in Support dated 18.09.2020 (Enclosure 3). The relevant grounds are as follows: "20. [as a result of the AG of Malaysia intervening in OS 51], the position taken by the Attorney General of Malaysia is that [OS 51] is an abuse of the process of the court; and that the court has no jurisdiction to adjudicate on the validity of POFMA.

In effect, the Attorney General of Malaysia on behalf of the Government of Malaysia seems to support the right of the Government of Singapore to extend the reach of its law to citizens of Malaysia acting within Malaysia and in furtherance of their constitutional right as obtained in Malaysia.

In essence, the [Government of Malaysia] is ready to allow the Plaintiff's right to freedom of speech to be subverted by a foreign law. The [Government of Malaysia] has, with respect, thus failed in the fulfilment of its duties to its citizenry".

The allegations of the above statements were misconceived for the simple reason, as rightly upheld by the Federal Court in endorsing the ICJ Advisory Opinion dated 29.04.1999 in Re Param Cumaraswamy [1999] ICJ Rep 61, that the government has a duty to ensure that the judicial branch of its government must act in accordance with the government's obligations under international law.

The Plaintiff contended that the Government of Malaysia has a positive duty to protect its citizens. The position under international law is clear in this respect. The ICJ has held that "within the limits prescribed by international law, a State may exercise diplomatic protection by whatever means ... it thinks fit" (Barcelona Traction Company Case (1970) ICJ Rep at [78]).

Based on the above, the principles distilled are that, while the individual concerned cannot prevent his State of nationality from taking up his claim with a foreign State, likewise, he cannot prevent his State from discontinuing the procedures because a national does not have the right to request his State to protect him. Diplomatic protection is, in this sense, exercised at the discretion of the State.

Under customary international law, there is no obligation on the part of the Defendant to act to ensure that "laws and conduct of a foreign state and its officials meet not only the requirements of the foreign state's own laws, but also the rights that our nationals have under our Constitution."

More crucially, freedom of expression under Article 10 of the FC is not an absolute right. It is a qualified right subject to lawful restrictions enumerated under Article 10(2) of the FC. In this connection, lawful restrictions may be imposed "in the interest of the security of the Federation or any part thereof, friendly relations with other countries, public order or morality, and restrictions designed to protect the privileges of Parliament or of any Legislative Assembly or to provide against contempt of court, defamation, or incitement to any offence "

On prohibition against online dissemination of false narrative of facts, section 233 of the Communications and Multimedia Act 1998 ("Act 588") prohibits the transmission of false communications. The corresponding dual-criminality against online falsehood as found in both POFMA and the local section 233 of Act 588 means that communication of online falsehood is an offence both in Malaysia as well as Singapore. For this reason, there appears to be no ground for the Plaintiff to contend as though it is not an offence in Malaysia for someone to communicate deliberate online falsehood.

In the present case, what is equally important is the fact that the 16th Article, which was a press statement dated 16.01.2020, posted on the Plaintiff's website, was the very same subject of litigation in the Singapore Court of Appeal decision in The Online Citizen Pte Ltd v Attorney-General and another [2021] 2 SLR 1358.

In The Online Citizen (supra), the Singapore content provider republished the same 16th Article issued by the Plaintiff here, repeating the identical allegations of "brutal and unlawful" hanging methods in Changi Prison. Pursuant to Section 11 of POFMA, a Correction Direction was issued to the said content provider. The content provider challenged the constitutionality of the said Correction Direction at the Singapore High Court.

In the Singapore High Court, the online content provider did not produce any evidence to prove the truth of the said press statement issued by the Plaintiff herein. On that basis, the High Court ruled against the content provider as having failed to discharge its burden of proof (The Online Citizen (supra) at [58]-[59]).

At the Court of Appeal, though attempt was made by the content provider to adduce further evidence in the form of two affidavits affirmed by a Malaysian lawyer Mr Zaid bin Abd Malek which purportedly demonstrate the truth of the allegations by the Plaintiff in the 16th Article, but the content provider did not pursue on proving the truth of the allegations made in the said press statement during the hearing of the appeal (The Online Citizen (CA) at [36], [41]).

It is noteworthy that the same Mr Zaid bin Abd Malek had also deposed an affidavit in his capacity as a director on behalf of the Plaintiff in the present OS 46 (Enclosure 56 dated 17.10.2024). In dismissing the appeal by the content provider, Sundaresh Menon CJ held that (at [244]): [244] As for the question under the fourth step of the analytical framework, which is whether LFL's allegations, as reproduced in the TOC Article, were false, we can see no basis for finding otherwise. LFL's allegations were baseless. Consistent with that, by the time the hearing before us, TOC's focus was no longer on proving the veracity of these allegations (see [36] and [41] above), and thus, no evidence was even proffered to attempt to convince us that they were true. We note too that, as mentioned at [35] above, these allegations were categorically refuted by an affidavit filed on behalf of the SPS, which Belinda Ang J took into account in dismissing TOC's application to set aside the TOC CD. We therefore find that there is no basis for us to set aside this CD under s 17(5)(b) of POFMA, and accordingly dismiss the TOC appeal."

Since the amended prayer in OS 46 necessarily hinged on the veracity of the allegations made by the Plaintiff in the press statement, i.e., the 16th Article were statements of truth, it is submitted that as the Plaintiff through its office-bearer one Mr Zaid bin Abd Malek had participated in the Singapore Court of Appeal proceedings in support of The Online Citizen's efforts to establish the truth of the allegations contained in the 16th Article, yet decided to abandon that attempt in the course of hearing of the appeal, the veracity of the press statement can no longer found a declaration sought through the amended OS 46 here. Apart from the bar of res judicata and forum non-convenience, this is particularly so when both the Singapore High Court as well as the Court of Appeal had ruled that the "allegations were baseless".

Besides, of paramount importance was the ruling of the Court of Appeal in The Online Citizen (supra) that the issuance of a Correction Direction by the POFMA authority, as in the case of the 16th Article issued by the Plaintiff, does not curtail the right to freedom of expression under the equipollent provision of Article 14(1)(a) of the Singapore Constitution (The Online Citizen (CA)(supra) at [61], [67]): "61 ... The Minister's assessment that a false statement of fact has been made is unquestionably, and, indeed, controversially, subject to a final determination by the court as to whether or not it is correct. This is precisely the subject of the procedure for setting aside a Part 3 Direction under s 17 of the POFMA. In our judgment, a statement that has been identified by the Minister as a false statement of fact under Pt 3 of the POFMA nonetheless continues to enjoy protection under Art 14(1)(a) of the Constitution, at least until it has been judicially determined to be indeed a false statement of fact. It follows that the issuance of a Part 3 Direction, which must be complied with once it is issued, is an exercise of state power against speech that remains constitutionally protected speech pending a judicial determination as to whether or not it constitutes a false statement of fact ...” "67 ... In our judgment, the issuance of a CD does not in fact curtail the right of the communicator of the subject statement identified in the CD to continue publishing the communicated material, including the alleged falsehood. Section 11(1) of the POFMA only requires the communicator of the subject statement to put up a correction notice "in the specified form and manner" highlighting what the Minister has identified as the alleged falsehood ... The communicator of the subject statement is not required to modify the content of the communicated material; nor is it prevented from modifying, if it so wishes, the content of that material. In short, the communicator of the subject statement remains free to speak in respect of the communicated material, save that it must also put up the specified correction notice in respect of that material."

In that Article 14(1)(a) of the Singapore Constitution stemmed from the same genesis with Article 10(1)(a) of the FC, and that both countries shared many common constitutional, judicial and legal history, an interpretation proffered by the Singapore Court of Appeal on the effect of a Correction Direction issued under POFMA, vis-à-vis the constitutional right of freedom of expression, commands the utmost persuasive force in a court in Malaysia.

The amended OS 46 in the present case which seeks to examine the constitutionality of a Correction Direction issued by the Singapore authority under POFMA against the 16th Article of the Plaintiff simply does not engage Article 14(1)(a) of the Singapore's Constitution, and for the same parable reason Article 10 of the FC, as explained by the Singapore Court of Appeal in The Online Citizen (supra)

In that the 16th Article of the Plaintiff has been authoritatively found to be "baseless" in The Online Citizen (CA) (supra), and that the Correction Direction sought to be challenged in the amended OS 46 did not engage the free speech protection under Article 14(1)(a) of the Singapore's Constitution, there is no conceivable reason to suggest otherwise that the same Correction Direction engages Article 10 FC. On this score alone, the amended OS 46 is liable to be dismissed in limine.

In response to the Federal Court's direction in LFL Sdn Bhd (supra) (at [61]), which called for the amended OS 46 to reconsider the Singapore legislature's power to enact laws with claimed extraterritorial effect under POFMA, the Defendant will assess POFMA's territorial application in order to counter the Plaintiff's submissions.

The principle of foreign act of state is pivoted on the crucial finding of "territoriality" of the impugned acts or conduct of a foreign sovereign state. In our case, the question of "territoriality" of POFMA will be considered in the light of the principle of foreign act of state.

Insofar as the facts of the present case are concerned, the prayer / declaratory relief as amended by the Federal Court involves a direct attack on POFMA passed by the Singapore's legislature as POFMA seeks to regulate "any acts which take place or take effect within the territory of that state".

The test of whether a challenge to a foreign legislation is direct or merely incidental was laid down by Rix LJ in Yukos Capital Sarl v OJSC Rosneft Oil Co [2014] QB 458 (at [109]-[110]）： "109. Now, in our judgment, we would agree that challenges to foreign acts of state, in order to invoke the acts of state doctrine, must, as Lord Wilberforce put it, lie at "the heart" of a case, and not be a matter of merely ancillary or collateral aspersion: and that a test of necessity to a decision may therefore be a useful test.

Thus we would again emphasise: the teaching of the Kirkpatrick case (and the cases which follow it) is not to do with any difference, were there to be any, between concepts of validity, legality, effectiveness, unlawfulness, wrongfulness, and so on. Validity (or invalidity) is just a useful label with which to refer to a congeries of legal concepts, which can be found spread around the cases. Similarly, the word "challenge" is not sacrosanct: the cases refer to the prohibition on adjudication, sitting in judgment on, investigation, examination, and so on. What the Kirkpatrick case is ultimately about, however, is the distinction between referring to acts of state (or proving them if their occurrence is disputed) as an existential matter, and on the other hand asking the court to inquire into them for the purpose of adjudicating upon their legal effectiveness including for these purposes their legal effectiveness as recognised in the country of the forum. It is the difference between citing a foreign statute (an act of state) for what it says (or even for what it is disputed as saying) on the one hand, something which of course happens all the time, and on the other hand challenging the effectiveness of that statute on the ground, for instance, that it was not properly enacted, or had been procured by corruption, or should not be recognised because it was unfair or expropriatory or discriminatory. As to the last possibilities, there can be a still further distinction to be made between the act of state which cannot be challenged for its effectiveness despite some alleged unfairness, and the act of state which is sufficiently outrages or penal or discriminatory to set up the successful argument that it falls foul of clear international law standards or English public policy and therefore can be challenged."

Using the criteria established in Yukos (supra), it is clear that the Plaintiff's argument constitutes a direct challenge to the legality of POFMA as applied beyond Singapore's borders, particularly in Malaysia. This meets the first condition for invoking Rule 1. The fact that OS 46 represents such a direct challenge is further supported by the Federal Court's judgment. When referring OS 46 back for reconsideration, the court stated the following LFL Sdn Bhd (supra) at [58], [61]-[62]): [58] It is clear, therefore, that the question of whether Singapore possesses the necessary jurisdiction to prescribe in this instance involves an evaluation of multiple factors, such that this issue cannot be decided summarily for the purpose of striking out. [61] We reiterate that the determination of OS 46 in the High Court is purely on question of law, i.e., on the extra-territorial effect of POFMA. Extra-territoriality is the main subject matter of OS 46. As amended, 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. [62] The Respondent expressed concern and sought clarification on the extent of their rights of freedom of expression under Article 10(1)(a) of the Federal Constitution in relation to statements made in Malaysia which are the subject matter of foreign legislation, namely POFMA. This, in effect, amounts to an issue relating to the extraterritorial jurisdiction of POFMA and its compatibility with the supreme law of our land: the Federal Constitution. This, in our view, is not obviously and plainly unsustainable. This is all the more so in light of our amendments to the relief sought in OS 46".

As regards the second requirement, POFMA is clearly only intended to cover a false statement of fact "communicated in Singapore": i) Section 3(1) of POFMA states that 'a statement or material is communicated in Singapore if it is made available to one or more end-users in Singapore on or through the internet'; ii) Section 3(3) further provides that 'a reference in this Act to communicating a statement or material in Singapore includes causing its communication (within the meaning of subsection (1) or (2), as the case may be) in Singapore'; iii) Section 5(a) provides as one of the purposes of POFMA 'to prevent the communication of false statements of fact in Singapore and to enable measures to be taken to counteract the effects of such communication'; iv) Section 7(1) provides for the offence of communication of false statements of fact in Singapore: 'a person must not do any act in or outside Singapore in order to communicate in Singapore a statement knowing or having reason to believe that (a) it is a false statement of fact; and (b) the communication of the statement in Singapore is likely to be [prejudicial to Singapore].”

Based on the definitional clause of the POFMA offence, which is only confined to "communication in Singapore", the POFMA regulation is obviously covered by the "acts which take place or take effect within the territory of that state".

The POFMA regulation, particularly in how it defines the element of "communicating in Singapore"—by criminalising the dissemination of online falsehoods that "occur or have effect within" Singapore—is clearly confined to domestic jurisdiction and does not extend beyond national borders. This approach is well aligned with the objective territorial principle recognised in international law. Therefore, it would appear that the act of state defence has been satisfied

The Defendant submits that the POFMA regulation is intraterritorial in nature, which is supported by the objective territorial principle, and there is no convincing ground to suggest that the exercise of objective territorial jurisdiction by Singapore under POFMA, albeit having extraterritorial effect on a non-resident abroad, is "in breach of clearly established rules of international law" or manifests "a grave infringement of human rights".

It is trite law that declaratory relief is discretionary in nature and "being discretionary, the remedy may, of course, be denied in appropriate cases" (Dato Menteri Othman bin Baginda & Anor v Dato Ombi Syed Alwi bin Syed Idrus [1981] 1M.L.J.29 at pp.31- 32). 'That power given to the court to make declaratory judgments is purely discretionary, and the court is not bound to entertain such an application except in a proper case' (Metal Industry Employees Union v Registrar or Trade Unions & Ors [1976] 1 MLJ 220 at 224).

To obtain declaratory relief, the Plaintiff must act with integrity and fairness—often referred to as coming with "clean hands" (Chong Kok Hon & Ors v Joint Management Body Cheras Sentral KL [2018] MLJU 1042 (CA) at [5(ii)]; KNK Development Sdn Bhd & Ors v Sumbangan Aneka Sdn Bhd [2018] MLJU 1281 (CA) at [5(ii)]). The Plaintiff has failed to satisfy the requirement of full and frank disclosure before a declaratory relief can be advanced (Perkasa Padu Sdn Bhd v Rayong ak Nuing & Ors [2009] 1 MLJ 268 at p.274).

The Court will not use its discretionary power to issue a declaratory judgment if the matter in question is merely academic. It is not the court's role to address hypothetical or abstract issues that are no longer active or practically significant (Tan Sri Musa bin Hj Aman v Tun Datuk Seri Panglima Hj Juhar Hj Mahiruddin & Anor [2020] 3 MLJ 46)

In light of the availability of an adequate alternative remedy in section 17 of POFMA, for which the Plaintiff was ever ready to seek recourse under the said remedy, "generally, the court will not grant a declaratory judgment where an adequate alternative remedy is available" (Manggai v Government of Sarawak & Anor [1970] 2 MLJ 41 (FC); Sakapp Commodities (M) Sdn Bhd v Cecil Abraham (Executor of the estate of Loo Cheng Ghee) [1998] 4 MLJ 651[1998] 4 MLJ 651 (CA) at p.661). Looking at the conduct of the Plaintiff in The Online Citizen (CA) (supra) (at [36], [41]), it is inequitable and inconsistent for the Plaintiff to now resist the validity of POFMA in the present OS 46, having subordinated itself to the Singapore jurisdiction, the present amended OS 46 was rendered academic and the issue of extraterritorial jurisdiction was no longer a live one.

In this respect, the Government of Malaysia is not a proxy for the Singapore legislature and hence is not the proper contradictor to oppose the declaration sought. The proper contradictor, which is the Singapore Government, is not before the court. As rightly held by the Federal Court, the Singapore Government was protected by state immunity before the local court.

As such, a declaratory order does not lie when all necessary and interested parties which may be affected by the order are not before the court (Zulkiflee bin Abdul Samad v Segi Objectif (M) Sdn Bhd [2016] MLJU 1333 (CA) at [9]; Triple Equity Sdn Bhd v Golden Success Property Sdn Bhd [2023] 3 MLJ 323 (CA) at [27(b)]). Furthermore, as discussed above, the Plaintiff had not established any "right" as contended under Article 10 of the FC.

Moreover, as previously outlined, the Plaintiff has failed to demonstrate the existence of any such "right" as claimed under Article 10 of the FC. When viewed collectively, all the aforementioned considerations indicate that, in accordance with the guidance provided by the Court of Appeal in Haris Fatillah bin Mohd Ibrahim v Suruhanjaya Pilihan Raya Malaysia [2017] 3 MLJ 543 (at [28]), the court should exercise its discretion to deny the amended declaratory relief sought in this instance.

It is argued that the subject matter under the amended OS 46 is non-justiciable, as it infringes the principle of foreign acts of state and the amended question of law in OS 46 which hinges on a misconceived right under Article 10 FC and rendered a moot point in the light of the various rulings made in The Online Citizen (supra).

The amended OS 46 engages the foreign act of state principle and is therefore non-justiciable. Since the subject matter of the amended OS 46 is non-justiciable, a declaratory relief does not lie (Karpal Singh v Sultan of Selangor [1988] 1 MLJ 64 at p.66). Analysis and findings

This Court agrees with the Plaintiff that the main issue and pleaded case of the Plaintiff must be confined to the Federal Court order and the Re-Amended OS 46 by the Federal Court. It is binding, and this Court cannot review or amend the order.

The Plaintiff's position as submitted above merely concerns the enforcement jurisdiction of POFMA, i.e., any action to compel compliance with POFMA, including the Correction Direction, cannot be enforced in Malaysia, unless Malaysia has given its consent to the same.

On the facts of this case, this Court agrees that there is no evidence of consent before this Court given expressly by Malaysia for POFMA to be applied in Malaysia. Generally, the principle of comity of nations limits the applicability of a country's laws to its own territory and its citizens within that territory ( the maxim "Extra territorium jus dicenti impune non paretur" )

As a trite legal principle, the law of one country cannot be extraterritorial in effect. On this note, the Plaintiff argues that If an interpretation by this Court to permit the enforcement of the POFMA in Malaysia, this would bring Singapore law into the territorial jurisdiction of Malaysia, against the principle of comity of nations. It would constitute an interference to the sovereignty of Malaysia and against the Article 10(1)(a) of the FC.

The Plaintiff further submits that the Defendant has a duty to protect its citizens from any putative claim by a foreign government, and this Court is at liberty to mould any remedy provided it is based on the facts of the case

After the decision of the Federal Court, based on that order, the prayers or reliefs sought for in OS 46 were amended accordingly and can be seen in Enclosure 52 as follows: i) A declaration that the Plaintiff has a right to express their opinions in Malaysia with regard to any matter as part of their right to freedom of speech under Article 10(1)(a) of the Federal Constitution; and ii) A declaration as to the extra-territorial jurisdiction of "Protection from Online Falsehood and Manipulation Act" in relation to a Malaysian citizen in Malaysia in light of Article 10(1)(a) of the Federal Constitution.

This Court will examine both prayer or remedy based on the arguments and confined to the order of the Federal Court accordingly.

(i) "A declaration that the Plaintiff has a right to express their opinions in Malaysia with regard to any matter as part of their right to freedom of speech under Article 10(1)(a) of the Federal Constitution"

The main argument by the Defendant is that the defence of "foreign act of the state" applied and ousted this Court's jurisdiction to grant prayers or reliefs in OS 46. If allowed, it would be amounting to directly challenging the validity of POFMA.

Looking at the judgment of the Federal Court, this Court tends to agree with the Learned Counsel for the Plaintiff that this issue was argued by both parties during striking out to challenge the power of the court to make any ruling vis-à-vis the validity of POFMA. Therefore, this Court has jurisdiction to hear and determine, not the validity of POFMA but its implication on a Malaysian citizen in Malaysia in light of Article 10(1)(a) of the FC, as ordered by the Federal Court, as stated below: "[38] In this case, it is clear that the relevant acts complained of are public acts of a sovereign state in relation to its governmental function. In other words, the Singaporean Minister of Foreign Affairs is acting in his official capacity when committing the conduct complained of, and therefore, there can be no dispute that this attracts state immunity. As alluded to earlier, the exceptions under the restricted immunity regime largely encompass commercial, employment, and other such exceptions; exceptions which are plainly inapplicable here. To that extent, we are unable to exercise any adjudicative jurisdiction over the acts of a sovereign nation, which includes the act of the Home Minister of Singapore."

Based on the order of the Federal Court, the issue of "act of State" has been fully argued and resulted that OS 46 has been amended. Therefore, the issue of jurisdiction to hear this OS could not be relitigated at this stage.

Now this Court will be looking at the core issue for determination under OS 46: "the interplay between the extraterritorial jurisdiction of POFMA and Article 10(1) of the FC, that is, the prescriptive jurisdiction of Singapore in extending the effect of POFMA extraterritorially".

In our case, based on the facts, the Correction Direction was issued to the Plaintiff pursuant to POFMA, which is a Singapore law, despite the Plaintiff is based in Malaysia, and the alleged communication, which is the subject of the said Correction Direction, was also released or issued in Malaysia.

On this argument, that by permitting the extraterritorial operation of POFMA against a Malaysian citizen in Malaysia, notwithstanding that Article 10(1)(a) FC, it would amount to restricting our citizens to express their opinion within Malaysia; this Court tends to differ.

Firstly, it should be noted that this freedom is not an absolute freedom but is subject to Article 10 (2) of the FC. This freedom is always guaranteed. When looking at this prayer (i): "A declaration that the Plaintiff has a right to express their opinions in Malaysia with regard to any matter as part of their right to freedom of speech under Article 10(1)(a) of the Federal Constitution",

This Court is of the view that the application made by the Plaintiff is "too general". At the same time, it is asked whether this Court still needs to give such a declaration when even without a Court declaration, the Plaintiff's rights are already embedded in the FC, and of course any statement issued by Plaintiff still subject to the relevant laws and it is not the duty of the Defendant to protect them if it was done according to Article 10 (1) (a) of the FC.

It is trite law that declaratory relief is discretionary in nature and "being discretionary, the remedy may, of course, be denied in appropriate cases" (Dato Menteri Othman bin Baginda & Anor v Dato Ombi Syed Alwi bin Syed Idrus [1981] 1M.L.J.29 at pp.31- 32). "That power given to the court to make declaratory judgments is purely discretionary, and the court is not bound to entertain such an application except in a proper case" (Metal Industry Employees Union v Registrar or Trade Unions & Ors [1976] 1 MLJ 220 at 224).

In our case, the right of the Plaintiff is already guaranteed by our FC. As long as the opinion is expressed within Malaysia and not against Article 10(1)(a) of the FC, no action can be taken against them. In our case, it is emphasized that the statements issued by the Plaintiff was made on the own capacity and not on behalf of the Defendant.

Based on this prayer (ii), the Plaintiff submits that only national legislations enacted by the Parliament of Malaysia (and not any other foreign legislative bodies) can restrict the freedom of speech and expression of a Malaysian citizen as guaranteed by Article 10(1)(a) FC. POFMA however, was enacted by the Parliament of Singapore.

However, for relief (ii), this court finds that the application for a declaration that POFMA is not applicable to the Plaintiff for any action taken in Malaysia is too early for this court to decide. This is because whether it is applicable to the Plaintiff is irrelevant at this stage. This is supported by the order of the Federal Court, which struck down the relief in relation to the application of its enforcement to the Plaintiff, as it affected the issue of the immunity of the Singapore Government. The order of the Federal Court is that it is applicable based on the following order: “(iii) prayer 3 of the original OS 46, which seeks to prohibit any enforcement action or process initiated by the Singapore authority against the Plaintiff in Malaysia, was disallowed as it encroaches on state immunity”

With the rejection of prayer 3, it is clear that the Singapore Government's future actions against the Plaintiff will still have to go through the legal process and related channels involving Malaysian law. It is not automatically enforceable against Plaintiff or our citizens due to the protection provided by the laws of our country, and shall be complied with by the Singapore Government.

On top of that, this Court cannot grant this relief because the laws were passed by the Singapore Government, which has the power to do so, and if this is allowed, it would be contrary to the immunity enjoyed by the Singapore Parliament. It is well established that the Defendant will not inquire into the validity of the acts of a foreign government when the said foreign government has been recognised by the Defendant as a sovereign foreign state. Therefore, the Defendant could not be held responsible for an action of a sovereign foreign state against the Plaintiff in OS 46.

The individual concerned (Plaintiff in this case) cannot prevent his state of nationality from taking up his claim with a foreign state, likewise he cannot prevent his State from discontinuing the procedures because the Plaintiff does not have the right to request for a diplomatic protection, as it touches the discretionary power of the states.

There is no obligation on the part of the Defendant to act or to ensure that "laws and conduct of a foreign state and its officials meet not only the requirements of the foreign state's own laws, but also the rights that our citizens have under FC". If it was done, against Article 10 (i) (a) of the FC, the Plaintiff will be subjected to be prosecuted under Malaysian law or any laws which have "extra-territorial law" passed by any sovereign country recognised by the Defendant.

As regards the second requirement, POFMA is clearly only intended to cover a false statement of fact "communicated in Singapore": The amended OS 46 engages the foreign act of state principle and is therefore non-justiciable. Since the subject matter of the amended OS 46 is non-justiciable, a declaratory relief does not lie (Karpal Singh v Sultan of Selangor [1988] 1 MLJ 64).

In our case, it is noticeable that while the Plaintiff strenuously objected to the application of POFMA and the validity of the Correction Direction issued by the POFMA authority against them on ground of alleged impermissible extraterritorial effect of the Singapore law in Malaysia, yet, the Plaintiff took active steps to participate in the hearing of the online content provider's appeal before the Singapore Court of Appeal (see The Online Citizen Pte Ltd) (supra).

Besides that, the affirmation of affidavits to be used in the Singapore court's proceedings to establish the veracity of the 16th Article was also an unequivocal act of submission by the Plaintiff to the Singapore jurisdiction. On this note, this court agrees with the Defendant that "having subordinated itself to the Singapore jurisdiction, the present amended OS 46 was rendered academic" and the issue of extraterritorial jurisdiction was no longer a live one.

Our court does not have any duty to declare that the POFMA "cannot be used against our citizens or null and void". The law was passed by the Singapore Parliament and not our Parliament. Even though the POFMA expressly has extraterritorial effect, it cannot be enforced without the cooperation by the Defendant or for not complying with the Malaysian law. For an example, the Extradition Act 1992 ("Act 479") is the primary law governing the extradition between Malaysia and foreign countries. It ensures that the fugitive is handled by fairly rather than by arbitrary deportation.

Therefore, the argument that POFMA cannot be implemented because it has not been passed by Parliament is inaccurate because foreign laws do not need to be recognized by our Parliament just because there are "elements of extraterritorial jurisdiction." Every enforcement must be through Malaysian law and a treaty recognized by Malaysia. This court has no doubt and fully agrees with the Plaintiff that for Malaysian law to have the effect of extraterritorial, the Malaysian Parliament must approve it; but it only applies to Malaysian law and does not apply to the law passed by other foreign states.

On this issue, to seek protection from the actions of PROFMA at this stage is inappropriate. This Court also cannot prevent the Singapore Government or Singapore Courts from exercising their judicial jurisdiction based on POFMA. The Court of Malaysia does not have the power to monitor the judicial jurisdiction of the courts of other countries.

Referring to the Karpal Singh Case (supra), this Court held that this relief only applies to illegal actions by the Malaysian Government and not to the validity of POFMA itself. It is "quite unreasonable" for the Plaintiff to seek such relief at a stage which, in the view of the court, is too remote. There is no obligation on the part of the Defendant to act and to ensure that "laws and conduct of a foreign state and its officials meet not only the requirements of the foreign state's own laws, but also the rights that our nationals have under our Constitution".

This Court agrees with the Defendant, as a reference, this principle has been stated in the case of Kaunda and Others v President of the Republic of South Africa and others [2004] ZACC 5,2005 (4) SA 235 (CC), that a constitutional right does not apply outside the territory of South Africa. After all, the freedom of expression under Article 10 FC is not an absolute right. It is a qualified right subject to lawful restrictions enumerated under Article 10(2) of the FC.

On the Plaintiff's argument that "to prefer the application of POFMA over Article 10(1)(a) of the FC would be to "subordinate local law to external law" or "to allow an external sovereignty in part to displace the local sovereignty", this court is of the view that POFMA remains as Singapore law and would never be recognised as Malaysian law. It has not been incorporated into Malaysian law. Therefore, there is no such "subordinate of local law to external law".

Under Article 10 of the FC, the word" Parliament" only refers to the Malaysian Parliament and is limited to Malaysian law. It does not intend to spread their power to regulate or invalidate any law passed by any foreign parliament or sovereign state. In our case, their sovereignty includes to enact POFMA extraterritorially.

This is a recognised jurisdiction of Singapore, but the Defendant remains free to refuse any enforcement within Malaysia. The Plaintiff seems to submit that Article 10 of the FC itself limits POFMA, and this Court disagrees on this point. Article 10 of the FC is a constitutionally guaranteed right against the Defendant's action and not to govern the foreign parliament or government's power to legislate their own law.

The Defendant also submits that there is no basis to prohibit the extraterritoriality of the legislative jurisdiction, and by doing this, it does not add up to the effect that it would be giving: "municipal laws an extraterritorial effect to the prejudice of the constitutional rights of another national in his or her own country". This court agrees with this argument because it is beyond the jurisdiction of this court, and it is not the court's role to address hypothetical or abstract issues.

In addition, a foreign law is passed by a foreign parliament and based on their own constitutional system. By looking at Articles 10(1(a) and 10 (2) FC, it applies to Malaysian law only, and POFMA does not become part of Malaysian law merely because it has an extraterritorial effect. It is directed at restrictions imposed by Malaysian law, not validating or approving foreign law.

On this argument, the Court is of the opinion that Article 10 of the FC cannot invalidate a law passed or enacted by another sovereign country. The Defendant is not applying or enforcing POFMA as our domestic law. Unless the Defendant restricted speech contrary to Article 10 of the FC, there is no reason to conclude that the Plaintiff's right of speech is restricted by POFMA.

This Court also took judicial notice that in Malaysia itself, there are several laws that also have extraterritorial effects, including the Communications and Multimedia Act 1998 ("Act 588"). Through the analysis of Parliament, there are also various amendments that are being discussed and amended to give effect to the extraterritorial implementation.

In fact, when this decision was given, the Defendant is actively amending the Sexual Offences Against Children Act (SOACA) 2017 to expand its extra-territorial jurisdiction. Looking at the Sexual Offences Against Children (Amendment) 2026, the law's reach will extend beyond just Malaysian citizens. It will now apply to permanent residents and individuals. The amendment expands legal protection to cover Malaysian children and those residing in Malaysia, regardless of where the sexual offense took place. This is in line with current changes around the world to prevent cross-border crimes.

The Court appreciates the arguments presented that assisted in reaching the decision, particularly considering the case's progression through the High Court, Court of Appeal, and Federal Court. This Court expects that this case, which is of public interest and involves the interpretation of articles in the FC, will follow a similar legal process Conclusion

The Court acknowledges and agrees with Plaintiff that the Malaysian Government should have been included as a Defendant in the case due to its relevance to the FC and the government's responsibility to protect citizens' rights; however, the effect of this application will result in the Defendant's interference with Singapore's sovereignty.

Therefore, in response to previous reliefs, that the "Protection from Online Falsehoods and Manipulation Act does not have extraterritorial effect, especially concerning a Malaysian citizen's freedom of speech under Article 10(1)(a) of the Federal Constitution", this court firmly answered in a negative tone.

After reviewing their submissions and applying legal principles to the facts presented, this Court decides as follows:

Federal Constitution

Extradition Act 1992

Protection from Online Falsehood and Manipulation Act 2019

Communications and Multimedia Act 1998

Sexual Offences Against Children Act (SOACA) 2017

Rules of Court 2012 Cases referred to: 1) Kerajaan Malaysia v LFL Sdn Bhd [2024] MLJU 3015. 2) Yukos Capital (No. 2) [2014] QB 458. 3) Mighell v. Sultan of Johore [1894] 1 QB 149. 4) Buck v AG [1965] 1 All ER 882. 5) Carr v. Francis Times & Co [1902] AC 176. 6) Hii Yii Ann v Deputy Commissioner of Taxation of the Commonwealth of Australia & Ors [2018] 7 MLJ 393. 7) Popplewell LJ in Mohamed v Breish [2020] EWCA Civ 637. 8) Maduro Board v Guuaido Board [2021] 1 All ER 719. 9) Jeyaretnam v Mahmood and others (1992). 10) Luther v Sagor [1921] 3 KB 532. 11) Princess Paley Olga v Weisz [1929] 1 KB 718. 12) Re Param Cumaraswamy [1999] ICJ Rep 61. 13) The Online Citizen Pte Ltd v Attorney-General and another [2021] 2 SLR 1358. 14) Yukos Capital Sarl v OJSC Rosneft Oil Co [2014] QB 458. 15) Chong Kok Hon & Ors v Joint Management Body Cheras Sentral KL [2018] MLJU 1042. 16) KNK Development Sdn Bhd & Ors v Sumbangan Aneka Sdn Bhd [2018] MLJU 1281. 17) Manggai v Government of Sarawak & Anor [1970] 2 MLJ 41. 18) Sakapp Commodities (M) Sdn Bhd v Cecil Abraham (Executor of the estate of Loo Cheng Ghee) [1998] 4 MLJ 651[1998] 4 MLJ 651 (CA). 19) Perkasa Padu Sdn Bhd v Rayong ak Nuing & Ors [2009] 1 MLJ 268. 20) Tan Sri Musa bin Hj Aman v Tun Datuk Seri Panglima Hj Juhar Hj Mahiruddin & Anor [2020] 3 MLJ 46. 21) Zulkiflee bin Abdul Samad v Segi Objectif (M) Sdn Bhd [2016] MLJU 1333. 22) Triple Equity Sdn Bhd v Golden Success Property Sdn Bhd [2023] 3 MLJ 323. 23) Haris Fatillah bin Mohd Ibrahim v Suruhanjaya Pilihan Raya Malaysia [2017] 3 MLJ 543. 24) Karpal Singh v Sultan of Selangor [1988] 1 MLJ 64. 25) Kaunda and Others v President of the Republic of South Africa and others [2004] ZACC 5, 2005 (4) SA 235.