BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)
LAST week a clutch of opposition politicians was denied entry into an East Malaysian state. One of them was allowed in but then evicted. The iconic Nurul Izzah of PKR chose to cancel her flight to avoid a similar fate, no doubt. Yet others notably Tun Dr Mahathir Mohamad were assured they would be allowed in. All politicians. All going for the same political function.
On what basis is all this being done? And is it right?
Although the Federal Constitution guarantees every citizen the right to move freely throughout Malaysia, it allows for restrictions for entry into Sabah and Sarawak. Hence pursuant to the Immigration Act, these states require West Malaysian citizens to produce their identity card or passport to enter their states. Which they do not have to do to enter any other state, of course.
However, the Act says clearly that entry cannot be denied if it is for “legitimate political activity”. This means that the guaranteed constitutional right of entry cannot be denied if this is indeed the purpose.
The then deputy prime minister, Tun Abdul Razak Hussain, assured Parliament in 1963 that this was indeed the position. This is what he said:
“Jadi dalam fasal 7 itu (‘sole purpose of engaging in legitimate political activity’) kalau sa-saorang hendak pergi ka-Sabah dan Sarawak kerana hendak menjalankan pekerjaan politik dia ada hak atau entitle to go, tetapi kalau tujuan yang lain terpaksalah dia mendapat kebenaraan menurut fasal dalam Rang Undang-Undang ini …”
Worse, no reasons are given for the decision to deny entry. As was the case when lawyer Ambiga Sreenevasan applied some years ago to enter Sabah for an ostensibly political forum alongside a leading state opposition figure and others. Just a bald bold statement by the authorities denying entry.
This is clearly unconstitutional. And for an additional reason too. The Federal Constitution guarantees the right to equality of treatment. Like cases must be treated in the same way. Else there is discrimination – which the Constitution forbids.There are other critically serious flaws in the Immigration Act, with regard to the power of the immigration authorities generally.
It says that the immigration and the state authorities do not need to give the person denied the right to be heard. But, says the Act, this is confined to before a decision is made. There is no exclusion of the right after a decision is made.
Yet the authorities give no grounds at all – preventing an aggrieved citizen to apprise the authorities as to why the decision should be reversed.
And then there is an insidious provision which says that the courts are precluded from reviewing the decision – except for procedural impropriety.
(Is not the refusal to give grounds which prevent the citizen making representations to the authority one such procedural impropriety?)
The cumulative effect of these provisions is to give the immigration and state authorities unfettered and absolute powers.
This our courts have long warned against. Unfettered discretion is a contradiction in terms, said former Lord President Raja Azlan Shah in a landmark decision. Every discretion, the Lord President said, “cannot be free from legal restraint; where it is wrongly exercised, it becomes the duty of the courts to intervene. The courts are the only defence of the liberty of the subject against departmental aggression” (Sri Lempah case).
In the same vein, Justice Zainun Ali, delivering a recent Federal Court decision (Semenyih Jaya case), declared that judicial review (right of the courts to review decisions made by executive or administrative bodies) is an essential feature of the Constitution. It embodies the doctrine of separation of powers firmly embedded in our Constitutional construct. And assures the independence of the judiciary. In effect judicial review is a basic and “sacrosanct” feature of the Constitution; and cannot be ousted. Else, as Raja Azlan Shah warned: (E)very legal power must have legal limits, otherwise there is dictatorship.
Unfortunately, our apex courts are reluctant to follow through with the Semenyih Jaya decision.
Recent pronouncements by some panels of the apex court suggest an attempt to restrict the effect of Semenyih Jaya to the facts of the particular case. Ignoring the salutary principles it enshrines.
The upshot is that our apex court – as demonstrated in a recent case (in which I had more than a passing interest, I must declare) – refused leave to argue substantively that:
» the provision refusing the right to be heard, in any event after a decision was made, was against the explicit provision of the Immigration Act;
» natural justice is a basic feature of the Constitution and could not be legislated out – in any event without a constitutional amendment;
» courts have a right to review decisions (judicial review) of immigration authorities especially when they give no grounds;
» judicial review is an essential feature of the Constitution and cannot be ousted;
» denial of access to the courts (and to justice) is unconstitutional; and
» that there was a need to ascertain the ambit of the powers of East Malaysian states to deny entry to a citizen from West Malaysia, especially for a legitimate political activity.
The apex court in refusing leave, harked back to a 2002 Federal Court decision. This decision had ignored a sustained series of pre-2002 high authoritative apex court decisions to the contrary (as regards the ouster of judicial review). As well as cases after 2002 – Semenyih Jaya being the most recent and prominent.
When the judiciary abstains in a contest between the citizenry and officialdom, it emboldens officialdom to act willy-nilly as it wishes.
And so, sadly, we will continue to read of the use of absolute and unfettered discretion to exclude many more West Malaysian politicians from entering Sabah and Sarawak. As well as of immigration authorities banning Malaysians from travelling abroad.
Gurdial is a former law professor and currently a legal consultant as well as Deputy President of HAKAM.