KUALA LUMPUR (May 16): The Federal Court has granted leave for the Malaysian government to attempt to strike out two lawsuits brought by Lawyers for Liberty (LFL) against the Malaysian and the Singaporean governments.

A three-judge apex court bench chaired by Datuk Abdul Rahman Sebli said that the government of Malaysia had passed the threshold for an appeal, and allowed the application in a unanimous decision.

The apex court will hear the merits of the application to strike out the two lawsuits at a later date.

“We have considered the written and oral submissions, and in our view, the leave questions posed by [the appellant] have passed the threshold under Section 96 of the Courts of Judicature Act,” he said.

Judges Datuk Zabariah Mohd Yusof and Datuk Hasnah Mohammed Hashim sat on the bench with Abdul Rahman.

In cases such as these, the Federal Court will only hear the appeal if there are legitimate questions of law which require a ruling or opinion from the apex court.

The originating lawsuits were filed by LFL, a non-governmental organisation, on Jan 24, 2020, in response to a Protection from Online Falsehoods and Manipulation Act (Pofma) direction issued to the outfit by the Singapore government two days prior.

One suit involves Singapore’s Minister for Home Affairs K Shanmugam, while the second suit involves the Malaysian government, both of the same subject matter.

The High Court had initially struck out the lawsuits after the attorney general via the deputy public prosecutor intervened for Shanmugam.

Upon LFL’s appeal in the Court of Appeal last year, the decision was overturned.

The Court of Appeal found that the case had merits, and that it was not “fit and proper for striking out”.

Given the decision then, Shanmugam had to put in an appearance in the Malaysian High Court to defend against the suits.

However, the Malaysian government later requested a stay, and put in an appeal in the apex court.

Now that leave has been granted for the striking out application, the apex court will decide if the case should be struck out, or have its full merits heard in the High Court.

LFL is seeking many reliefs, including a declaration by the court that Shanmugam nor anyone acting in his ministry can enforce Pofma outside of Singapore.

In the appeal, there will be seven questions of law which the Federal Court bench will deliberate on, including:

1. 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.
2. Whether the Malaysian court can exercise jurisdiction when the issue of sovereign immunity over a foreign governmental act is raised.
3. Whether the Malaysian court has jurisdiction to adjudicate on the conduct of a foreign state.

In 2020, Shanmugam invoked Singapore’s anti-fake news law (Pofma) against LFL over a statement it made regarding the method of execution for the death penalty which the Singapore authorities were allegedly carrying out.

LFL was challenging Shanmugam’s order to modify an article on its website about the alleged method of execution.

The article published on Jan 16, 2020 quoted an unidentified Singapore prison officer alleging that authorities gave instructions to snap prisoners' necks by kicking them in the event of a rope breaking during hangings.

Shanmugam then denied the accusations as "untrue, baseless and preposterous", and ordered the group and several websites to attach "fake news" notices to posts and articles carrying them.

Singapore then blocked LFL’s website after it refused to comply with the directive.