Sovereign immunity is state’s right, but not changing domicile status

Zaidi Azmi
Written by Zaidi Azmi

KUALA LUMPUR – December 9, 2016: It is normal for a government to invoke the sovereign immunity doctrine as a defense against lawsuits filed in a foreign court but it cannot change a person’s domicile status without his or her consent.

This was the opinion of legal experts who talked to The Mole about a lawsuit filed by a Malaysian timber tycoon against the Australian government; specifically the Australian Tax Office (ATO).

The ATO had on Tuesday, invoked the doctrine of sovereign immunity in an attempt to strike out Sibu-born Hii Yii An’s lawsuit that was filed at the High Court here two months ago, after ATO changed his tax residency status to that of Australia.

Dr Mohd Hisham Mohd Kamal of International Islamic University (IIUM) pointed out that the sovereign immunity doctrine makes a country, entities and individuals leading it, invulnerable to legal proceedings in foreign courts.

“All courts, regardless of countries, are equal to one another. It is a principle called sovereign equality.

“Therefore to sue a government in a foreign court can be construed as an attempt to undermine the principle. For example, the Malaysian government cannot be sued in a Singaporean court and vice versa,” Hisham told The Mole.

The only way to sue another country, Hisham explained, was to do it at an international court but “both countries must consent to it.”

However, in the case of Hii against the ATO, Hisham was of the opinion that matters concerning a person’s domicile status were usually ascertain through the person’s intention.

“The domicile of a person is not determined by any document. It depends on the person’s intention if he or she wants to permanently live in that country.

“No other governments can simply change a person’s domicile status without his or her consent,” he told The Mole.

Hii had claimed that he had never abandoned his Malaysian domicile status and therefore ATO was wrong to change it and have no right to tax him.

Another expert, also from IIUM, Dr Hanif Ahamat explained that there are two types of sovereign immunity, namely: absolute and restrictive immunity.

Absolute immunity means that the state, entities and individuals leading it is impervious to any legal proceeding.

Restrictive immunity, on the other hand, allows reasonable room for those protected by the doctrine to face legal proceedings.

“But the type of matters that the country is no longer immune, differs from one country to another.

“Usually, such immunity is not accorded if the root of the dispute stems from actions that are not of sovereign characteristic such as declaring war onto another country.

“But taxing those in the country is a sovereign act. So if someone were to sue a government for doing that in a foreign court, then, to my opinion, the government has the ground to invoke its immunity,” said Hanif.



About the author

Zaidi Azmi

Zaidi Azmi

If Zaidi Azmi isn’t busy finding his way in the city, this 26-year-old northern kampung boy can be found struggling to make sense of the Malaysian political scene. Zaidi can be reached at zaidiazmi91@gmail.com.