The Federal Court in this case deals with the constitutionality of section 59 and 59A of the Immigration Act 1959/63.
Facts of the Case
The appellant was the chairperson of a NGO known as ‘Bersih 2.0” and was a holder of a valid Malaysian passport. On 15 may 2016, she was going to travel to South Korea to receive the 2016 Gwangju Prize for Human Rights given by the May 18 Memorial Foundation on behalf of Bersih 2.0. However, she was stopped by the immigration authorities and was told that there was a travel ban imposed on her after collecting her boarding pass at KLIA for a flight to South Korea. No reason was given to the appellant by the authorities for the travel ban before or after the incident.
The reason was only disclosed in the first respondent’s affidavit filled in response to the present judicial review proceedings commenced by the appellant in the High Court on 28 July 2016. The first respondent had instructed to blacklist the appellant from leaving the country for a period of 3 years from 6 January 2016 pursuant to a circular titled ‘Pekeliling Imigresen Malaysia Terhad Bil. 3 Tahun 2015”. The ground relied was that the appellant had disparaged the Government of Malaysia (memburukkan Kerajaan Malaysia) at different forums and illegal assemblies. However, the travel ban was lifted on 17 May 2016, 2 days after she was stopped at KLIA.
According to the appellant, facts shown in affidavit referred to events that had not occur when the travel ban was imposed which implies that there was no real reason to impose the travel ban. The respondents relied on section 59A of the Immigration Act 1959/63 and say that their decision must be accepted by the Court regardless of whether there is any real reason. Appellant also claimed that the travel ban had interfered with her freedom of speech guaranteed by Article 10(1) of the Federal Constitution, in particular her freedom to speak at the event in South Korea.
On 28 July 2016, the appellant filed an application to judicially review the impugned decision of the respondents for her travel ban on the ground that the impugned decision is baseless, unreasonable, irrational and completely unfair and the respondents made a mistake in law. Appellant’s application was dismissed by the High Court essentially on the ground that since there is no constitutional right for a citizen to travel abroad as decided by the former Federal Court in Government of Malaysia & Ors v Loh Wai Kong [1979] 1 LNS 22; [1979] 2 MLJ 33, the government has the power to stop a citizen from leaving the country. As for the appellant’s challenge on the right to be heard, the High Court held that the right is expressly excluded by section 59 of the Immigration Act. It was further held that there is no statutory obligation reposed in the respondents to provide any reason for the travel ban or to inform the appellant of the reason.
The appellant’s appeal to the Court of Appeal was dismissed on the ground that it was rendered academic and hypothetical as the travel ban had been lifted. It was held that the issue before the court was the discretionary power of the respondents whose decision under section 59A of the Immigration Act 1959/63 is not amenable to judicial review. The appellant was granted leave to appeal on three questions which forms the three main issues to be answered by the Federal Court.
Issue of the Case
Whether section 3(2) of the Immigration Act empowers the Director General the unfettered discretion to impose a travel ban. In particular, can the Director General impose a travel ban for reasons that impinge on the democratic rights of citizens such as criticizing the government?
Whether section 59 of the Immigration Act is valid and constitutional?
Whether section 59A of the Immigration Act is valid and constitutional in the light of Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561 and Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] 1 MLJ 545?
Judgment of the Case
Section 59A of the Immigration Act 1959/63 is as follows:
“59A. (1) There shall be no judicial review in any court on any act done or any decision made by the Minister or the Director General, or in the case of an East Malaysian State, the State Authority, under this Act except in regard to any question relating to compliance with any procedural requirement of this Act or the regulations governing that act or decision.
(2) In this section, “judicial review” includes proceedings instituted by way of –
(a) an application for any of the prerogative orders of mandamus, prohibition and certiorari;
(b) an application for a declaration or an injunction;
(c) any writ of habeas corpus; or
(d) any other suit or action relating to or arising out of any act done or any decision made in pursuance of any power conferred upon the Minister or the Director General, or in the case of an East Malaysian State, the State Authority, by any provisions of this Act.”
Being a post-Merdeka law, section 59A of the Immigration Act is subject to Article 4(1) of the Federal Constitution, which established constitutional supremacy in Malaysia. The Article reads:
“This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.”
Appellant argued that by limiting the court’s judicial review power to procedural non-compliance and denying the Court of the power to review the substantive decision, the parliament is in breach of separation of power and thus makes section 59A unconstitutional.
The combined effect of Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561 (Semenyih Jaya), Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] 1 MLJ 545 (Indira Gandhi) and Alma Nudo Atenza v Public Prosecutor and another appeal [2019] 5 CLJ 780; [2019] 4 MLJ 1 (Alma Nudo Atenza) on “judicial power” was compendiously summarised in JRI Resources Sdn Bhd v Kuwait Finance House (Malaysia) Bhd; President of Association of Islamic Banking Institutions Malaysia & Anor (Interveners) [2019] 5 CLJ 569 as follows:
“(a) Judicial power is vested exclusively in the High Courts by virtue of Article 121(1) of the Federal Constitution. Judicial independence and separation of powers are recognized as “basic features” in the basic structure of the Federal Constitution. The inherent judicial power of the civil courts under Article 121(1) is inextricably intertwined with their constitutional role as a check and balance mechanism (Semenyih Jaya, Indira Gandhi and Alma Nudo Atenza);
(b) Parliament does not have power to amend the Federal Constitution to the effect of undermining the doctrine of separation of powers and independence of the judiciary, which formed the “basic structure” of the Federal Constitution (Semenyih Jaya); features of the basic structure cannot be abrogated or removed by a constitutional amendment (Indira Gandhi);
(c) Courts can prevent Parliament from destroying the basic structure of the Federal Constitution. And while the Federal Constitution does not specifically explicate the doctrine of basic structure, what the doctrine signifies is that a parliamentary enactment isopen to scrutiny not only for clear-cut violation of the Federal Constitution but also for violation of the documents or principles that constitute the constitutional foundation (Alma Nudo Atenza);
(d) A constitution must be interpreted in the light of its historical and philosophical context, as well as its fundamental underlying principles; the foundational principles of a constitution shape its basic structure (Indira Gandhi);
(e) Judicial power cannot be removed from the judiciary; judicial power cannot be conferred upon any other body which does not comply with the constitutional safeguards to ensure its independence; non-judicial power cannot be conferred by another branch of government onto the judiciary (Semenyih Jaya).”
The decisions in Semenyih Jaya, Indira Gandhi and Alma Nudo Atenza appear to be in conflict with the earlier decision of this court in Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan [2002] 4 CLJ 105 (Sugumar Balakrishnan) which held that the section excludes judicial review on the substantive decision of the authority. The case also endorsed the validity of section 59 of the Immigration Act (relevant to leave Question 2) which excludes the right of hearing. Section 59 states:
“59. No person and no member of a class of person shall be given an opportunity of being heard before the minister or the Director General, or in the case of an East Malaysian State, the State Authority, makes any order against him in respect of any matter under this Act or any subsidiary legislation made under this Act.”
The appellant argued that Sugumar Balakrishnan has been decided wrongly and should be overruled because it limits the judicial review powers to only “extremely narrow ground” of procedural non-compliance.
The Court held that judicial review can be excluded by express words in an Act of Parliament. It is decided in R Rama Chandran v The Industrial Court of Malaysia [1997] 1 CLJ 147; [1997] 1 MLJ 145 that the extent of judicial review may be determined intervention. The Court explained that the facts and constitutional or legal issues raised in this case were different from Semenyih Jaya, Indira Gandhi and Alma Nudo Atenza. Sugumar. Balakrishnan is therefore the prevailing authority on the constitutional validity of sections 59 and 59A of the Immigration Act. It is a principle of great antiquity that the decision in each case must be confined to its own peculiar facts and circumstances. It is not every pronouncement by the court that counts as the ratio decidendi (rule of law) of the case. While obiter dicta (opinion expressed not essential to decision) are entitled to due respect, they cannot be placed on par with ratio decidendi.
It is not disputed that section 59A of the Immigration Act was enacted pursuant to Article 121(1) of the Federal Constitution. Appellant’s argument was that it is inconsistent with other Articles of the Federal Constitution, namely Article 5(1) - right to life and personal liberty, Article 8 (1) - equality before the law and Article 10(1) - right to free speech and expression and therefore void under Article 4(1). The court held that these Articles have no relevance whatsoever to the issue before the court, which is whether Parliament is vested with power by Article 121(1) to enact section 59A of the Immigration Act.
Section 59A of the Immigration Act has expressed with irresistible clearness the intention of Parliament to exclude judicial review on the decision made. The recent decision of the UK Supreme Court in R (on the application of Privacy International) v Investigatory Powers Tribunal and others [2019] UKSC 2 was decided by majority that Judicial review can only be excluded by “the most clear and explicit words”. It was also held in Kerajaan Malaysia & Ors v Nasharuddin Nasir [2004] 1 CLJ 81 that if the intention of Parliament is expressed in words which are clear and explicit, then the court must give expression to that intention. Thus, Judicial review can be excluded by express words in an Act of Parliament, in this case by the express words in section 59A of the Immigration Act.
Appellant’s argument is that section 59A of the Immigration Act is unconstitutional because it violates the doctrine of separation of powers, which is a “basic structure” of the Federal Constitution.
The Court held this is a dangerous proposition as it practically transforms the doctrine of separation of powers into the supreme law of the land in place of the Federal Constitution, effectively putting an end to constitutional supremacy that this country subscribes to as enshrined in Article 4(1) of the Federal Constitution which declares that “This Constitution shall be the supreme law of the Federation”. In any case, it is incorrect to say that section 59A of the Immigration Act confers “absolute and unfettered” power on the decision maker. The provision only limits judicial power by confining it to any question relating to non-compliance with any procedural requirement of the Immigration Act. It is not a total removal of judicial power to render the entire executive action absolutely non-justiciable.
Section 59A of the Immigration Act is valid and constitutional as it had been validly enacted by Parliament pursuant to the power vested in it by Article 121(1) of the Federal Constitution, which means the decision of the Director General of Immigration to impose the travel ban on the appellant is not subject to judicial review save in the manner prescribed. Only procedural non-compliance is subject to judicial review.
The next issue then was whether there was failure by the respondents to comply with the procedure prescribed when imposing the travel ban. Section 3(2) of the Immigration Act reads:
“The Director General shall have the general supervision and direction of all matters relating to immigration throughout Malaysia.”
It confers on the Director General a broad power over “all matters relating to immigration”. Appellant’s counsel submits that there are “multifarious procedures” which the Minister and/or the Director General of Immigration was obliged to comply. The fact is, there is none in the Immigration Act. Counsel relied on section 2 of the Passports Act and section 104 of the Income Tax Act to support his argument that there was procedural non-compliance.
The Court held that the Passports Act, which must be read together with the Immigration Act. By virtue of section 13 of the former Act, it does not prescribe any procedure either for imposing a travel ban. Therefore, the question of procedural non-compliance with the Passports Act by the Director General of Immigration does not arise. The Income Tax Act, on the other hand, does provide for the procedure as set out earlier but non-compliance with the procedure prescribed by the Income Tax Act is not non-compliance with the Immigration Act. The issue therefore boils down to the question whether the respondents could rely on the general provisions of section 3(2) of the Immigration Act to impose the travel ban on the appellant, in the absence of any specific procedure prescribed by the Immigration Act.
The Court held section 40(1) of the Interpretation Acts 1948 and 1967 gives the Director General of Immigration an implied power to impose the travel ban. The Director General of Immigration must have such implied powers to enforce his powers, duties and responsibilities under the Immigration Act. In Pua Kiam Wee v Ketua Pengarah Imigresen Malaysia & Anor [2018] 4 CLJ 54; [2018] 6 MLJ 670 the Court of Appeal ruled that the broad supervision powers of the Director General under section 3(2) of the Immigration Act encompasses the power to bar a holder of a Malaysian passport from travelling abroad on appropriate ground.
The appellant also argued that her freedom of speech and assembly had been breached by the respondents by being punished with a travel ban of up to 3 years and was prevented from exercising her freedom of speech in the Gwangju Human Rights Award ceremony in South Korea.
The Court held that authority on the right to travel abroad is still Loh Wai Kong except that it has no application to the facts and circumstances of the present case. The right to free speech is too remotely related to the question whether she had a right to leave the country to travel overseas and to the question whether section 59A of the Immigration Act is constitutional.
The doctrine of constitutional supremacy does not allow any doctrine of law to take precedence over the written terms of the Federal Constitution. sections 59 and 59A of the Immigration Act are not void for being inconsistent with Article 4(1) read with Article 121(1) of the Federal Constitution limitation of the court’s review power by section 59A of the Immigration Act. It falls squarely within the power of Parliament to legislate pursuant to the power conferred on it by Article121(1) of the Federal Constitution and is not in breach of the doctrine of separation of powers, which cannot in any event prevail over the written constitution.
In exercising its supervisory jurisdiction as conferred under the Federal Constitution and the Courts of Judicature Act 1964, the Courts will use judicial jurisprudence and legal reasoning to examine the impugned decision, to find if the process of fair play as set out in prescribed procedures have been complied with. Appellant only learnt for the first time that she was banned from travelling abroad on the day of travel and at the KLIA, the logical place to start must be the respondents’ explanation for the imposition of the ban. Since the respondents never replied to the appellant’s letter, their affidavit in reply becomes crucial.
Respondents’ explanation came through an affidavit affirmed by its then Timbalan Ketua Setiausaha (Keselamatan), Kementerian Dalam Negeri (deponent). He admitted that it was he who had directed for the appellant’s name to be blacklisted and instruction was given as far back as 6 January 2016. In his affidavit in reply the reasons for his decision, appellant’s name was blacklisted because she disparaged the Government of Malaysia at the “Forum People’s Movement Can Bring Change” and was involved in organising an unlawful protest [Perhimpunan Anti-Trans Pacific Partnership] where such protest could disparaged the Government of Malaysia. Both events for which the appellant was accused of had yet to take place at the time the respondents blacklisted her. The forum was scheduled for 7 January 2016, the day after the deponent gave his instruction while the protest was not till 23 January 2016.
Deponent further stated on behalf of the respondents that there are no legal provisions requiring the respondents to inform the appellant in advance of any restriction of travel overseas; that in any event, the appellant ought to have checked against the department’ website for any restriction in travel prior to travelling. The respondents denied that its decision is ultra vires and violates the appellant’ fundamental liberties; that on the contrary the respondents have acted in accordance with the relevant law. Respondents claimed that while the appellant may have been issued with a passport, that passport may, at any time, be restrained from being used for travelling overseas. This is through the blacklisting mechanism and as per Pekeliling Imigresen Malaysia Terhad Bil. 3 Tahun 2015 (Circular). In the case of the appellant, she was classified under item 3 of the Schedule to the Circular.
Having scrutinised the respondents’ explanation and the Circular, the Court found that both the explanation and the Circular suffer from several fatal flaws. First, it does not authorise the respondents to blacklist the appellant whether for the reasons put forward or at all. Second, the Circular is invalid. On the first ground, the appellant’s case does not fall within this scenario as she was not applying for another new international passport such that a new passport may not be issued to her for the relevant period, depending on the circumstances as set out in Lampiran B. The Circular thus does not apply to the appellant and the impugned decision is clearly invalid and offends its own procedural requirements and an order of certiorari ought to have been granted to quash the said decision since the respondents have themselves removed the appellant from the blacklist even before the application for judicial review was filed but this was not known till later, then the appropriate order would be the grant of a declaration that the respondents have acted in excess of jurisdiction
On the second ground, Court view that the Circular is in any event invalid. Circular gives no indication of its source of enabling power whether it be pursuant to the Immigration Act or Passport Act. Further, even if this was a drafting flaw, neither legislation empowers the respondent from issuing such circulars having a force of law to have the reaches that it did in the case of the appellant. At best, such circulars are only administrative and for internal use with no force of law at all. Although the respondent had conceded that the Circular is issued under the Immigration Act, it actually has no application and its reliance is misplaced that Act deals more with matters of entry and arrivals into Malaysia of non-citizens and how unlawful entries of such persons or persons without the necessary travel documentation, the substantial part of Immigration Act has nothing really to do with her. As a citizen, the appellant is expressly guaranteed a right of entry without restrictions. Immigration Act does not regulate the right to depart and by implication, the right to travel, then the Circular which claims to have its source of validity under this Act, is simply invalid. Such general powers of supervision and direction even of all matters relating to immigration cannot, by any stretch of imagination, extend to a power, whether implied or express, to ban travel by citizens for reasons which are unrelated to immigration or passports purportedly for scandalising or ridiculing the government, a matter which does not come within the purview of the original powers of the Director General of Immigration
The appellant was unable to travel on 15 May 2016 because her valid passport had been blacklisted thus the Immigration Act has no application. The relevant law on passports is the Passports Act 1966. The Passports Act too, does not allow for the issuance of such circulars. The endorsement or the exercise of the power under section 2 of the Passports Act is always open to challenge and scrutiny by the Courts. Second, such endorsements in any case, logically, may only take place at the time of entry or in the case of the appellant, at the time of departure. It would be reasonable and also fair to say that the endorsement may extend to a prohibition of entry or departure or such similar remark. Again, it may only be lawfully endorsed at the time of presentation of passport, and only upon questions put and any answers given. The endorsement or the blacklist was not affected at the time of departure on 15 May 2016 by the relevant immigration officer at KLIA. Instead, it was entered on 6 January 2016, in clear violation of the terms of section 2 of Passport Act. Thus, the endorsement is invalid and the impugned decision is bad in law as well as on the facts.
The Passport Act does not empower the respondents to issue a Circular having force of law. Section 11 of Passport Act empowers the Minister to make Regulations generally for the purpose of Passport Act. The Circular is clearly not such Regulations. Even if the Circular is valid, the first respondents have no power to ban or bar the appellant on the ground that she has criticised the government or that she has committed some offence in that respect. The offences created in Immigration Act relate to illegal entry into the country and the unlawful presence in the country and such similar offences. The first respondent is not a police officer and is in no position to make any determination that the appellant has disparaged the government. That task and duty is given to the police under the Police Act 1963.
Under section 104 of Income Tax Act 1967 and section 22A of Perbadanan Tabung Pendidikan Tinggi Nasional Act 1997, there are fairly stringent requirements of process that must be observed, including prior notification on the affected person of the intended act of travel ban or restriction, before any restriction is to take effect. The respondent’s role is merely facilitative or to assist other departments or agencies who have express and specific power.
The impugned decision is necessarily and more properly a decision under the Passports Act and not the Immigration Act. It must and ought to have been so examined by the High Court instead of readily accepting that it is Immigration Act that applies. Although the blacklisting or endorsement had already been lifted, it is a matter of grave importance to the general citizenry and to the respondents too, that the validity of the impugned decision is examined. As seen, the respondents have not only made a decision which is wholly irrational and unreasonable, they have acted far in excess of their jurisdiction. since the Court have concluded that the respondents do not possess any power or authority whatsoever to police the offence of disparaging the government, the respondents cannot bar the appellant from leaving the country. That decision to ban the appellant from leaving is always subject to scrutiny of the Court and section 59A.
The Federal Court also explained how supervisory jurisdiction is exercised by the Court. The Court states:
“[373] Now, how the Court is to deal with the complaint when approached for the exercise of its supervisory jurisdiction is not a matter which is spelt out or can be dictated by the terms of section 59A. That power, authority or jurisdiction is provided for in Article 121 read with Article 4 and more specifically, in the Courts of Judicature Act 1964 [Act 91]. It is in those sources that the Court takes its power and jurisdiction, including inherent power; and it is through legal reasoning and jurisprudence that the Court determines whether its powers within its supervisory jurisdiction would be engaged in any particular cause. Legal principles of reasoning such as the rules of natural justice, the audi alterem partem rule; the Wednesbury principles of procedural impropriety, illegality, irrationality and unreasonableness [see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; and Council of Civil Service Unions v Minister for Civil Services [1985] AC 374], mala fides, abuse of process, are but a few such principles.
[374] In an application for judicial review, the Court exercises its supervisory jurisdiction as opposed to its original and appellate jurisdiction. In the exercise of its supervisory jurisdiction, the merits of the decision are not of primary concern; it is the process or the procedure that is scrutinized. And, in determining whether those processes or procedure have been complied with, the Courts use, amongst others, its powers and tools of principles and reasoning to reach its answer. As alluded to earlier when dealing with the first question, this task is not mechanical, passive or grammarian; it is a heavy responsibility carefully shouldered so that proper direction may be shown so that the same errors are not repeated; and generally, for better administration. These tools of reasoning can never be legislated; it would lead to sheer exhaustion.”
On the peculiar facts and circumstances of this case, in particular the reason given by the Director General for imposing the travel ban, which reason turned out to be inappropriate, Question 1 has to be answered in the negative, that is, although the Director General has a discretionary power to impose a travel ban on a citizen, the discretion is not unfettered. For that reason, and for that reason only, the appeal is allowed in terms of prayer 4 of the Judicial Review Application, that is, a declaration that the respondents do not have an unfettered discretion in making the impugned decision. There shall be no order as to costs.
Principle of the Case
Sections 59 and 59A of the Immigration Act are valid and constitutional.
Although the Director General has a discretionary power to impose a travel ban on a citizen, the discretion is not unfettered.
The full judgments of the Federal Court can be accessed at the link here.
Comments