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Written by Ivan Jan En Yu
Case Facts
This was an appeal arising from the appellant’s initial attempt at soliciting judicial review in the High Court. The appellant, Datuk Ambiga Sreenevasan was a prominent lawyer and a human rights advocate who had often travelled across the country and beyond for political events and rallies.
On the 25th of November 2014, she had desired to make one such trip to Kota Kinabalu to appear as a speaker on the Negara-Ku movement which advocated for national unity and harmony. However, when she wrote a letter to the first respondent, the Director of Immigration Sabah to confirm her rights to entry, she was met with a rejection letter from the State of Authority which prohibited her entry to Sabah. Not only that, her second letter as a request for information about her ban was met with no response.
Consequently, the appellant had filed for judicial review as a means of soliciting an order of certiorari and mandamus both, to revoke the entry ban and to permit her entry into Sabah respectively.
In the High Court, the application was turned down on the basis that the ouster clause in section 59A of the Immigration Act 1959/63 explicitly stated that any action done or decision made by the state authority under the Act cannot be subjected to judicial review with the exception of affairs involving the procedural non-compliance or requirements of the Act. The court further emphasized that its focus was in consideration of the decision-making process, as opposed to the fairness of the decision. Dissatisfied, the appellant appealed.
Issue of Law
The main issue in this appeal was the consideration of its merits.
Argument
At its core, the appellant’s argument centered around the Judicial Commissioner’s (JC’s) faults such as his prior reliance on the case of Pihak Berkuasa Negeri Sabah v. Sugumar Balakrishnan & Another Appeal [2002] 4 CLJ 105 (“Sugumar’s case”) to determine that the State Authority’s decision was non-justifiable.
With supporting precedents, the appellant had claimed that the Sugumar case was bad law and that the JC had misinterpreted the intentions of the act. She stated that S. 59A of the Act was meant to deter illegal immigration and should not be applied to her, given that she is travelling for legitimate political activity, which should be exempted from the Act’s reach. This is especially the case for the appellant, since she has made numerous trips to Sabah in the past without intervention.
In contention, the Senior Federal Counsel who represented the respondents argued that Act 155 provisions of ss. 59,59A,65,66 and 67 were undoubtedly clear-cut, which meant that it would be necessary for the court to abide by its provisions to the best of its ability, especially when there was no ambiguity involved. It was further submitted since the respondents had acted in accordance with the State Authority and in line with the law, they cannot be said to have violated the appellant’s rights.
Decision of the court
In the Court of Appeal’s dismissal of the appeal, it was held that it lacked any merit on the basis of a few reasons: the appellant’s efforts were insufficient in undermining the Sugumar case, their past travels to Sabah were an unreliable basis in the current case and that S. 59A(1) of Act 155 explicitly prevents the judicial review in any court with regards to actions or decisions made under the Act with the exception of questions pertaining to the compliance with any procedural requirements.
Analysis
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The interplay of the Federal Constitution and the Immigration Act is such that although freedom of travel amongst the Malaysian states is promised, there are certain restrictions between the realms of Sabah and Sarawak. These restrictions however, explicitly exempt any effect on citizens travelling for the sole purpose of legitimate political activity as seen in s.67 of the Act. In other words, the appellant should have had the constitutional right to enter Sabah, granted that her purpose was legitimate. The fact that the immigration authorities had the power to not only deny her entry but also provide no reasoning whatsoever, is a clear constitutional violation. To make matters worse, the sinister clause of s.59A(1) essentially entrusts the immigration authorities with discretionary powers that they may exercise at their own will without being subjected to any legal constraints.
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In the words of Raja Azlan Shah: every legal power must have legal limits, otherwise there is dictatorship. In light of this case, I am inclined to believe that the courts were too conservative and abiding by past statutory Acts to remedy the full extent of arbitrary powers exercised by the immigration authorities. It has become apparent that should they be allowed to proceed as they are, then they will continue to breach the rights of anyone they please for their own agendas and biases, politically or otherwise.
Bibiliography
“Ambiga to File Suit over Sabah Entry Ban” (The Edge MarketsNovember 19, 2014)
https://www.theedgemarkets.com/article/ambiga-file-suit-over-sabah-entry-ban accessed September 4, 2021
The Malaysian Insider, “Ambiga to File Suit over Sabah Entry Ban” (Yahoo.comNovember 18, 2014)
https://news.yahoo.com/SG/news/ambiga-file-suit-over-sabah-entry-ban-065512673.html accessed September 4, 2021
United Nations High Commissioner for Refugees, “Refworld | Malaysia: Immigration Act, 1959-1963” (Refworld2021)
https://www.refworld.org/docid/3ae6b54c0.html
[2018] 4 AMR 525, Court of Appeal “ZUL RAFIQUE & Partners” (Zulrafique.com.my2018)
https://www.zulrafique.com.my/article-sample.php?id=391#_ftnref3 accessed September 2, 2021
LEE S, “Ambiga Fails to Challenge Sabah’s Immigration Ban” (The StarSeptember 28, 2015)
https://www.thestar.com.my/news/nation/2015/09/28/ambiga-loses-bid-to-challenge-sabah-immigration-law accessed September 3, 2021
Chan J, “Court Says Not Empowered to Review Sabah Ban on Ambiga” (Malaymail.comSeptember 28, 2015)
https://www.malaymail.com/news/malaysia/2015/09/28/court-says-not-empowered-to-review-sabah-ban-on-ambiga/977785 accessed September 4, 2021
https://michaelchow.com.my/wp/wp-content/uploads/2020/10/Ambiga-Sreenevasan-v-Director-of-Immigration-Sabah-Noor-Alam-Khan-A-Wahid-Khan-ors.pdf “Why Deny Entry to Citizens?” (http://www.thesundaily.my2017) https://www.thesundaily.my/archive/why-deny-entry-citizens-ATARCH487962 accessed September 4, 2021