Facts

‍The appellant, chairperson of Bersih 2.0, intended to travel to South Korea on 15.5.2016 to receive an international humanitarian award. Prior to her departure at the Kuala Lumpur International Airport, she was stopped by immigration authorities and was told that there was a travel ban imposed on her for an undisclosed reason. She then sought to judicially review this travel ban, which was later lifted on 17.5.2016. The appellant’s challenge, among others, sought the following relief:

1. an order of certiorari to quash the respondents’ decision to blacklist the appellant from travelling overseas;
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2. a declaration that the respondents acted in breach of Articles 5(1), 8 and/or 10(1)(a) of the Constitution;
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3. a declaration that the respondents cannot rely on Section 59 of the Immigration Act (“IA”) as its denial of natural justice is a violation of the Constitution; and
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4. a declaration that Section 59 (which excludes the right to be heard) and Section 59A (which excludes judicial review except in relation to compliance with procedural requirements) of the IA are unconstitutional.

The Federal Court sat in a panel of 7 judges. The Court unanimously quashed the respondent’s decision to blacklist the appellant from overseas travel.

However, the Court, by a majority, held Section 59A IA to be constitutional. Justices Abdul Rahman Sebli FCJ and Mary Lim FCJ wrote for the majority. Whilst Justices Tengku Maimun CJ and Nallini Pathmanathan FCJ wrote dissenting judgments.

‍Principles

1. Basic Structure Doctrine

The majority observed that the cases of Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat [2017] 5 CLJ 526 (“Semenyih Jaya”) and Indira Gandhi a/p Mutho v. Pengarah Jabatan Agama Islam Perak [2018] 1 MLJ 545 (“Indira Gandhi”), which held that judicial power is a part of the Constitution’s basic structure, are mere obiter remarks (observations by a judge that were unrelated and/or unnecessary to the legal issues in a case) without legal effect. The majority also held that Article 121(1) of the Constitution cannot be invalidated by abstract doctrines such as the basic structure doctrine (“BSD”) and the doctrine of separation of powers, which are not mentioned in the Constitution. The concern of the majority with the BSD was that it disabled Parliament from amending and/or removing constitutional provisions which have been deemed to be ‘basic’. This would mean that such provisions could be changed indefinitely. In the opinion of the majority, this was aggravated by the absence of expressed limits to the BSD. Without such limitation, the courts would be seen to be free to expand the category of ‘basic features’ within the Constitution. Consequently, these provisions would be immune from any amendment. The majority was also reluctant to recognize the BSD as it was seen to be a foreign creation. The BSD is an Indian principle to prevent Parliament from amending the Constitution freely. The BSD was necessary in India because the Indian Constitution does not have a provision similar to our Article 4(1), which states the supremacy of the Constitution. Since Malaysia already has Article 4(1), the court observed that the BSD is not needed locally. In the end, the majority took the view that the rejection of the BSD in Loh Kooi Choon v. Government of Malaysia [1977] 2 MLJ 187 was correct.

2. Separation of Powers and Judicial Power

Although Section 59A IA limits the power of judicial review to allegations of procedural non-compliance only, the majority rejected the argument that it violated the doctrine of the separation of powers, and by extension Article 121(1) of the Constitution. This was because Article 121(1) of the Constitution states that the jurisdiction of courts is “as may be conferred by or under federal law”. Hence, Section 59A was seen to be consistent with Article 121(1). The majority also referred to historical documents concerning the drafting of the Constitution. From these documents, the court critically observed a new ‘basic feature’ of the Constitution, that is – the jurisdiction and powers conferred of courts are dependent on the legislative powers of the Federation. Abdul Rahman Sebli FCJ also held that unless and until Article 121(1) is amended or repealed or struck down, the full force of this provision must be given effect to. His Lordship rejected Semenyih Jaya’s approach of interpreting Article 121(1), which ignored the term “the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law”.

3. Ouster Clauses

The majority held that Section 59A is valid and consistent with Article 121(1) of the Constitution because it only limits the court’s scrutiny and does not exclude it entirely. Furthermore, the case which previously dealt with the constitutionality of Section 59A IA was Pihak Berkuasa Negeri Sabah v. Sugumar Balakrishnan [2002] 4 CLJ 105 (“Sugumar”). The appellant argued that Sugumar was wrongly decided in light of the decisions in Semenyih Jaya, Indira Gandhi and Alma Nudo Atenza v. Public Prosecutor [2019] 3 MLRA 1 (“Alma Nudo”). The court rejected this argument. The majority held that Sugumar could be considered as being decided wrongly because Semenyih Jaya, Indira Gandhi and Alma Nudo were not cases which dealt with Section 59A IA. Hence, Sugumar had not been overruled by these three cases. The majority also relied on the UK Supreme Court decision of R (on the application of Privacy International) v. Investigatory Powers Tribunal and others [2019] UKSC 22, to hold that judicial review can only be excluded by “the most clear and explicit words”.

4. Inconsistency with the Constitution

The majority observed that Section 59A was enacted pursuant to Article 121(1) of the Constitution. Hence, Section 59A can only be held to be inconsistent with the Constitution if it contradicts with Article 121(1), and not any other Articles within the Constitution. Hence, Section 59A cannot be unconstitutional because it violates Article 5(1), Article 8(1) nor Article 10(1)(a) as argued by the appellant. The court held that Article 4(1) should not be considered as a general provision to hack down all inconsistent laws – it is there to safeguard the supremacy of the Constitution by preventing Parliament from enacting any law it pleases. Other than that, the majority also held that the mechanism provided under Article 4(1) should be used to invalidate a law, and not the BSD. Article 4(1) is simpler as it makes no distinction between what is basic or not basic in the structure of the Constitution. As long as it the law impugned is inconsistent, it should be struck down for being unconstitutional via Article 4(1).

5. Right to Travel Overseas

The majority ruled that even if the constitutionality of Section 59A IA may be impugned by other Articles within the Constitution, the appellant had no valid claim to a right to travel overseas pursuant to the decision in Loh Wai Kong. The majority rejected the decision of Lee Kwan Woh v. Public Prosecutor [2009] 5 CLJ 631 (“Lee Kwan Woh”), where it was held that Loh Wai Kong was “worthless precedent”, and that personal liberty under Article 5(1) includes the right to travel abroad. Instead, the court upheld Loh Wai Kong as “good law”.

‍Decision of the Federal Court

‍Eventually, based on the principles above, the Federal Court upheld the constitutionality of Sections 59 and 59A IA. However, Mary Lim FCJ in her concurring judgment for the majority held that an Immigration Department Circular relied on by the respondents could not authorize the blacklisting of the appellants. It was held that the Circular applied only to applications for new passports and for the period of suspension of issuances of a new passport to those who have committed criminal offences. Hence, the Circular could be imposed onto the appellant. Next, Her Ladyship also held that the Circular was invalid as (i) it gave no indication of its source of enabling law; and (ii) no legislation provided for the issuance of such circulars to have the force of law. Consequently, the Federal Court held that the Director General’s reasons for the travel ban was inappropriate, and that the Director General’s discretionary power to impose a travel ban is not unfettered. Therefore, the court ruled in favour of the appellant, and the travel ban was nullified.

Written by Iqbal Harith*

The content of this article is of a general nature and does not constitute legal or other advice or the provision of legal or other professional services, and shall not be relied upon as such. The opinions and views, if any, expressed in this article, are solely the contributor’s and not of Messrs Steven Thiru & Sudhar Partnership. Messrs Steven Thiru & Sudhar Partnership accepts no responsibility for any loss which may arise from reliance on the information contained in this article.