Is extraterritorial legislation a breach of international law?

I REFER to the report “Lawyers for Liberty sues Singapore’s Home Affairs Minister over death penalty statement” (The Star, Jan 24; online at bit.ly/star_sue).

According to the report, human rights organisation Lawyers for Liberty (LFL) is suing Singapore’s Home Affairs Minister for invoking the city-state’s anti-fake news law over a statement LFL made regarding the method of execution for the death penalty in Singapore.

It appears that LFL is contending that the extraterritorial effect of the Singaporean law – the Protection from Online Falsehood and Manipulation (Pofma) – breaches international law, that Pofma cannot be applied to Malaysian citizens in Malaysia, particularly when the alleged communication was not made in Singapore.

LFL is well entitled to its contentions but the literature on the matter offers an interesting read.

Extraterritorial legislation like Pofma is not unknown. These days laws do have extraterritorial jurisdiction, meaning that the law of a state extends over conduct occurring outside of its borders. While extraterritorial jurisdiction is controversial, it is becoming frequent.

Despite its recent assertions, extraterritoriality is not a new concept. Almost a century ago, in 1927, the Permanent Court of International Justice, in the case of SS Lotus, had recognised extraterritoriality, in the absence of any prohibitive rule.

There are generally accepted bases for extraterritoriality, one of which is the “protective principle”. This is invoked to justify extraterritoriality of offences affecting the security, integrity, sovereignty or government functions of that state.

Singapore’s Transboundary Haze Pollution Act 2014 is another extraterritorial legislation. The Act criminalises conduct by entities in or outside Singapore that cause or contribute to haze pollution in Singapore.

Both Pofma and this Act appear to be based on the protective principle.

Readers might recall that at the height of a haze episode in September 2019, calls were made for the Malaysian government to consider having an extraterritorial legislation akin to Singapore’s Haze Pollution Act: “With Asean haze law ineffective, it’s time for our own” (The Star, Sept 23,2019; online at bit.ly/star_act). An editorial by Sunday Star also called for a transboundary haze law (“Time to draft a transboundary haze law”, Sunday Star, Sept 22,2019; online at bit.ly/star_says).

An extraterritorial transboundary haze law of our own would extend our law against citizens of another nation.

Following LFL’s contentions, would not that be in breach of international law?

HAFIZ HASSAN

Melaka