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Case Update: True construction of section 8 of the Internal Security Act 1960

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CIVIL PROCEDURE
Jurisdiction of courts – Statutory interpretation – Judicial review – Whether on a true construction of subsection 8B(1) and section 8C of the Internal Security Act 1960, the court has jurisdiction to award damages for the tort of false imprisonment against the Minister of Home Affairs – Internal Security Act 1960, sections 8B(1), 8C

Pengusaha, Tempat Tahanan Perlindungan Kamunting, Taiping and 2 Others v Badrul Zaman Bin P.S Md Zakariah
[2018] 5 AMR 733, Federal Court

Facts This was an appeal by Pengusaha Tempat Tahanan Perlindungan Kamunting, Taiping and two others (‘the appellants’) against the decision of the Court of Appeal in affirming the decision of the High Court in allowing Badrul Zaman Bin P S Md Zakariah’s (‘the respondent’) claims against the appellants’ for general damages for the tort of imprisonment in respect of the extended period of detention under section 8(1)[1] of the Internal Security Act 1960 (‘the ISA’). The respondent was initially detained by an order issued by the Deputy Minister of Home Affairs under section 8(1) of the ISA for a period of two years. An extension order for a further two years under subsection 8(7)[2] of the ISA was then issued. Aggrieved, the respondent applied for a writ of habeas corpus[3] at the Penang High Court and succeeded in his application. The respondent then brought an action in the Kuala Lumpur High Court for damages for the tort of false imprisonment in respect of the extended period of detention. The learned judge of the Kuala Lumpur High Court ruled in favour of the respondent, and awarded general and exemplary damages. The appellants appealed to the Court of Appeal, which affirmed the finding of the High Court. Hence, this appeal.

Issue The main issue is whether on a true construction of subsection 8B(1)[4] and 8C of the ISA, the court has jurisdiction to award damages for the tort of false imprisonment against the Minister of Home Affairs.

Held In allowing the appeal, the Federal Court held that the words under section 8B(1) of the ISA are explicit, clear and precise in ousting the jurisdiction of the courts, as the act or decision complained of fell under the category of “any act done or decision made by the Yang di-Pertuan Agong or the Minister in the exercise of their discretionary power in accordance with this Act”. Further, the respondent’s action clearly falls under the category of proceedings instituted by way of “any other suit, action or other legal proceedings relating to or arising out of any act or decision made by the Yang di-Pertuan Agong or Minister in accordance with the Act” as provided under section 8C of the ISA. Thus, it was held that the court has no jurisdiction to award damages for the tort of false imprisonment against the Minister of Home Affairs.
 
[1] Power to order detention or restriction of persons
[2] ‘The Minister may direct that the duration of any detention order or restriction order be extended for such further period, not exceeding two years, as he may specify, and thereafter for such further periods, not exceeding two years at a time, as he may specify…’
[3] A writ requiring a person under arrest to be brought before a judge or into court, especially to secure the person's release unless lawful grounds are shown for their detention.
[4] Judicial review of act or decision of Yang di-Pertuan Agong and Minister