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Case Update: Federal Court negates the existence of the Basic Structure Doctrine of the Federal Constitution.

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CONSTITUTIONAL LAW
The basic structure doctrine of the Federal Constitution – Doctrine of separation of powers – Judicial review – Article 121, Federal Constitution – Section 59A, Immigration Act 1959/63

Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor
[2021] MLJU 12, Federal Court
- see the grounds of judgment here

Facts The appellant was the chairperson of a non-governmental organisation known as Bersih 2.0 and was a holder of a valid Malaysian passport. In 2016, after collecting her boarding pass at the Kuala Lumpur International Airport (KLIA) for a flight to South Korea, she was stopped by the immigration authorities and was told that there was a travel ban imposed on her and that she could not leave the country. No reason was given to the appellant for the travel ban, before or after the incident. The reason was only disclosed in the first respondent’s affidavit filed in response to the present judicial review proceedings commenced by the appellant in the High Court. In gist, it was deposed to in the affidavit that on the first respondent’s instruction, the appellant was blacklisted from leaving the country for a period of up to 3 years. The ground for the blacklisting was that the appellant had disparaged the Government of Malaysia at different forums and illegal assemblies. The blacklisting and travel ban were however lifted by the respondents two days after she was stopped at the KLIA. The High Court dismissed the appellant’s application for judicial review, essentially on the ground that since there is no constitutional right for a citizen to travel abroad, 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[1] of the Immigration Act 1959/63 (the “Act”), and 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 Court of Appeal dismissed the appellant’s appeal on the ground that it was rendered academic and hypothetical as the travel ban had been lifted and further held that the issue before the court was the discretionary power of the respondents whose decision under section 59A[2] of the Act is not amenable to judicial review. Hence, this appeal.

Issue The main issue in this case is whether section 59A of the Act is valid and constitutional in the light of Semenyih Jaya[3], Indira Gandhi[4] and Alma Nudo Atenza[5], cases which reaffirmed the principle that judicial power resides in the judiciary under the doctrine of separation of powers and which, according to these cases, cannot be abrogated or removed even by constitutional amendment.

Held The Federal Court held that section 59A of the Immigration Act is valid and constitutional on the ground that the basic structure doctrine is an Indian concept that has no place within the local constitutional jurisprudence. The Court further stated that the expositions on the basic structure doctrine found in Semenyih Jaya, Indira Gandhi and Alma Nudo Atenza were mere obiters (observation by judge that is unnecessary), thereby having no binding legal effect.

ZUL RAFIQUE & partners
{30 January 2021}
 
[1] Exclusion of right to be heard.
[2] Exclusion of judicial review.
[3] Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561.

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[4] Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] 1 MLJ 545.
[5] Alma Nudo Atenza v Public Prosecutor and another appeal [2019] 5 CLJ 780.

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➭ LINKEDIN: Zul Rafique & Partners
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