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www.ipsofactoJ.com/archive/index.htm [1997] Part 3 Case 5 [HCSS] |
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Judgment
Ian H.C. Chin J
INTRODUCTION
On 11 October 1997, Mr. Yong Teck Lee, presently the Chief Minister of Sabah (‘the Chief Minister’), designated Mr. Ghulam Jelani Khanizaman, the Secretary of Internal Affairs and Research (‘Mr. Ghulam’), under s 62 of the Immigration Act 1959/63 (‘the Act’) for the purpose of issuing directions to the Director of Immigration, Sabah, under s 65(1) of the Act. The Gazette notification published on 30 October 1997 relating thereto reads:
[No JPBN 1509/4/(88)] THE IMMIGRATION ACT 1959/63 (ACT 155) DESIGNATION UNDER SECTION 62 In exercise of the powers conferred upon me by section 62 of the Immigration Act 1959/63, I, Mr. Yong Teck Lee, the Chief Minister of Sabah, hereby designate Mr. Ghulam Jelani Khanizaman, Secretary of Internal Affairs and Research, for the purpose of issuing directions to the Director of Immigration, Sabah, under section 65(1) of the said Act.
Dated at Kota Kinabalu, this 11th day of October, 1997.
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On 10 November 1997, Mr. Ghulam by a letter directed the Director of Immigration (‘the director’) to cancel the entry permit granted on 27 December 1995 to Sugumar Balakrishnan (‘the applicant’). The letter is in these terms (reproducing only the relevant parts) [translation]:
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CHIEF MINISTER’S DEPARTMENT Kota Kinabalu
CANCELLATION OF ENTRY PERMIT TO SABAH - MR. SUGUMAR BALAKRISHNAN With respect, I have been directed to refer to the above matter.
[Signed] (Mr. GHULAM JELANI BIN KHANIZAMAN) Sabah State Authority |
The direction to the director was, according to that letter, given pursuant to the powers conferred under s 65(1) of the Act which is convenient to be set out here, viz:
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65. |
General powers of State authority
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The director carried out the direction on 12 November 1997 when he caused the applicant to be served with a notice containing the following terms:
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NOTICE OF CANCELLATION OF ENTRY PERMIT Section 65(1)(c) Immigration Act 1959/63 (Amended 1997) To: Sugumar Balakrishnan of Kota Kinabalu Whereas you, Sugumar Balakrishnan I/C No 45xxxxx, have been granted entry permit to reside in Sabah vide Ref No CIM/EP/21072 issued on 27 December 1995 at Kota Kinabalu. NOW, KNOW YOU, that I, Abdullah Sani Sulaiman, State Director of Immigration, Sabah, by virtue of the directive by the State Authority of Sabah under section 65(1)(c) of the Immigration Act, 1959/63 do hereby forthwith cancel the entry permit issued to you and your presence in the state of Sabah is declared unlawful. Upon receiving this order you are summoned to appear at the Immigration Office, 6th Floor, Wisma Dang Bandung, Kota Kinabalu, Sabah, on or before 18 November 1997 for further action. [Signed] (ABDULLAH SANI SULAIMAN) DIRECTOR OF IMMIGRATION STATE OF SABAH Dated this 11 November 1997 |
The applicant was also at the same time served with a copy of a special pass that allowed him to remain in Sabah for seven days in order to enable him to appear before the director on or before 18 November 1997. The applicant on 17 November 1997 moved the High Court and obtained leave to apply for an order of certiorari but failed to obtain a stay of the cancellation of the entry permit. The stay was, however, granted by the Court of Appeal. The motion for the order of certiorari was then filed on 20 November 1997 and the state authority of Sabah then joined the proceedings on 18 December 1997. The motion was thereafter heard on December 19 and 20 and I reserved judgment till 26 December 1997.
OTHER FACTS OF THE CASE
The applicant is a Negri Sembilan-born Malaysian who first came to Sabah on 8 August 1975 to work as a teacher. He later became an advocate after being admitted to the Sabah Bar on 23 October 1985 and had since practised as an advocate in Sabah until now, at first under a work pass. He has five children from his marriages and had made Sabah his home. He had bought six properties in Kota Kinabalu. Sometime in 1995, he applied for an entry permit but it was rejected on 8 August 1995. On 21 December 1995, he personally handed an appeal letter to the then Chief Minister of Sabah, Mr. Salleh Tun Said Keruak, who noted on the letter that he had no objection to the application for the entry permit. This letter was then handed to the director on 22 December 1995 and it resulted in a letter dated 26 December 1995 from the director to the applicant to notify him of the approval of the entry permit. On 27 December 1995, the applicant’s passport was endorsed with the entry permit.
Mr. Muhammad Shafee Abdullah, learned counsel for the applicant, had argued that the decision of the director ought to be quashed while Mr. Stephen Foo, the learned Sabah State Attorney General, who appeared for the state authority of Sabah, argued otherwise. Ms Nur Aini Zulkiflee, the learned senior federal counsel, appeared for the director, but she did not argue against or for any party. I turn now to the various contentions, several of which revolve around the construction of the various provisions of the Act.
CONTENTIONS
WHETHER JUDICIAL REVIEW WAS EXCLUDED
Mr. Foo contended that the decision of the director and that of the state authority cannot be judicially reviewed on account of s 59A (Pt VI) of the Act which came into force on 1 February 1997. That section reads:
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59A. |
Exclusion of judicial review
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Mr. Shafee, however, submitted that the privative clause applies only to acts or decisions of the state authority and that is the Chief Minister of Sabah, as defined in s 62 of the Act, and that it does not apply to any act or decision of the director. This calls for an examination of that definition section, the relevant part of which is in the following terms:
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PART VII SPECIAL PROVISIONS FOR EAST MALAYSIA Chapter I – General Interpretation In this part unless the context otherwise requires – ‘State Authority’, for any purpose relating to an East Malaysian State, means the Chief Minister of the State or such person holding office in the State as the Chief Minister may designate for the purpose by notification in the State Gazette. |
It is clear to me, and therefore, Mr. Foo was correct in submitting that s 62 does not have the effect urged by Mr. Shafee because ‘state authority’ had been defined to mean not only the Chief Minister of the state but also ‘such other person’ as the Chief Minister may designate. Therefore, the term ‘state authority’ means either the person who is then the Chief Minister of Sabah or someone (holding office in the state) whom the Chief Minister had designated. The Chief Minister, it will be recalled, had designated Mr. Ghulam.
Mr. Shafee next argued that s 59A does not apply to the director because the term ‘Director General’ used in s 59A is not intended to include the director ‘in so far as his duty to comply with directions given by the state authority under s 65’ is concerned. This is how learned counsel submitted:
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The word ‘Director General’ in s 59A is not intended to include the [director] in so far as his duty to comply with directions given by the state authority under s 65. By virtue of s 59B(a) read together with s 64(3), the duty to comply with directions given by the state authority under s 65 is not a duty required to be discharged by the Director General under Pts I to VI of the Immigration Act 1959/63. It is a duty to be discharged by the [director] under s 65(1). Therefore, when the [director] cancelled the entry permit and made the declaration pursuant to compliance with the direction given by the state authority under s 65(1)(c) and the Director General did not have a corresponding duty in this connection under Pts I to VI. |
Learned counsel added that what he submitted:
reflects the clear intention of Parliament since it made separate provision for the East Malaysian state;
is supported by the clear words of s 59A; and
is supported by the fact that the Act, which is a penal statute, should be construed narrowly in favour of the applicant and also when there is doubt.
Since ss 64 and 65 (Pt VII) are mentioned in support of the argument, it is convenient that they also be reproduced, viz:
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64. |
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65. |
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Mr. Foo replied that the term ‘Director General’ in s 59A covers the director ‘by virtue of s 64(3)’ and that when the director exercised his power to comply with the direction of the state authority, he was in fact exercising a general power under Pts I-VI to give effect to specific direction under s 65. That proposition of law appears to be against the cardinal rule that the literal meaning of the words must be adhered to as closely as possible (Yeo Peck Chie v KS Gill & Co [1946] MLJ 131 at p 133; H Rubber Estates Bhd v Director General of Inland Revenue [1979] 1 MLJ 115; Chin Choy v Collector of Stamp Duties [1979] 1 MLJ 69; Foo Loke Ying v Television Broadcasts Ltd [1985] 2 MLJ 35).
However, there is a presumption against Parliament acting in vain (Foo Loke Ying v Television Broadcasts Ltd). It is clear to me that Parliament had intended that certain decisions and orders of the executive ought not to be questioned by the court when it introduced the privative clause, at first in 1989 but amended to its present form in 1997. The clause seeks to protect the act or decision of, among others, the state authority.
What then, are the acts or decisions which a state authority can make under the Act? They appear to me to be those acts or decisions of the state authority when giving directions pursuant to s 65. The directions are the only decisions or acts which a state authority can make under the Act. Therefore, when Parliament enacted s 59A, it is clear that the intention of Parliament was to protect those acts or decisions of the state authority from judicial review (except for questions relating to compliance with procedural requirements of the Act or regulations governing those acts or decisions).
The act or decision of the director following a direction of the state authority is really the act or decision of the state authority as the director has no choice but to carry out the direction. Therefore, any challenge to the act of the director under s 65 is in fact a challenge to the decision or act of the state authority and that is caught by the privative clause. To construe the privative clause as not to apply to the director would expose the act or decision of the state authority to judicial review which is what Parliament had sought to prevent and this would mean Parliament had acted in vain. This should be avoided. A liberal approach to construction must be taken in order to implement the true intention of Parliament ( Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan [1996] 1 MLJ 261).
Furthermore, I am of the view that s 59A(2)(d) can be used in aid of the above conclusion because it defines judicial review to include ‘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 state authority by any provisions of this Act’. This means judicial review is excluded if whatever the director did was pursuant to a decision or act of the state authority under the provisions of the Act. Therefore, it makes sense if the action of the director is equated with the act or decision of the state authority.
Mr. Shafee then argued that the applicant’s challenge comes within the excepting provision. No procedure is laid down for the state authority to observe before it issues any direction under s 65. There is no procedure laid down for the director to observe before complying with the direction and before cancelling the entry permit under s 65. The requirement of s 14 of an inquiry does not, for the reasons appearing later, apply to Pt VII.
It was then argued that there is an error of law when the director cancelled the entry permit and made the declaration of unlawfulness and that such a decision would not be immunized from judicial review by an ouster clause, citing in support Petaling Tin Bhd v Lee Kian Chan [1994] 1 MLJ 657, Syarikat Kenderaan Melayu Kelantan Bhd v Transport Workers Union [1995] 2 MLJ 317 and Kumpulan Perangsang Selangor Bhd v Zaid Mohd Noh [1997] 1 MLJ 789. As a matter of law, it is settled by the cases cited that where there is an error of law, a privative clause will not prevent judicial review. But the question is – did the director or the state authority commit any error of law?
WHETHER THERE WAS AN ERROR OF LAW
It will be recalled that the director acted to cancel the entry pass after he was directed to do so by the state authority under s 65. Mr. Shafee contended that the director can only cancel the entry permit under s 14 and can only make the declaration under s 14(4) and since the director acted, instead, under s 65, he had committed an error of law. Instead of summarizing what Mr. Shafee had said in this regard, it is best that I reproduce what learned counsel had submitted in full, viz:
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(14) |
The central issue here is whether the respondent could cancel the applicant’s entry permit and make the declaration under s 65(1)(c) without exercising his powers under s 14 and without reference to s 14. |
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(15) |
Prior to 1 February 1997, s 65(1)(c) read as follows:
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(16) |
Section 65(1)(c) was amended pursuant to the Immigration (Amendment) Act 1997, which came into force on 1 February 1997, wherein the words ‘exercise any discretion vested in him to’ was deleted. However, it is pertinent to note that the words, ‘In exercising his powers under Pts I to VI as a special law for an East Malaysian state ....’ has not been deleted. |
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(17) |
Part III of the Immigration Act 1959/63 comprising ss 10 to 15, deals specifically with entry permits: generalia specialibus non derogant rule applies. The applicant was granted an entry permit pursuant to s 10 of the Act (see the endorsement in the applicant’s passport at exhibit ‘SB-9’ in the applicant’s affidavit). |
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(18) |
Part VII of the Immigration Act 1959/63 comprise of special provisions for East Malaysia. Section 64(1) makes it amply clear that Pts I to VI is the immigration law applicable to Malaysia and ‘those parts shall also have effect .... as a special law for each of the East Malaysian states ....’ Section 64(3) clearly states that the respondent shall have all such authority to exercise the powers and discretions vested in the Director General and to discharge the duties required to be discharged by him as may be necessary for the purpose of giving effect to Pts I to VI of the Immigration Act 1959/63 as a special law for an East Malaysian state. |
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(19) |
It is an undisputed fact that the Director General has no powers or discretion vested in him as far as Pt VII of the Immigration Act 1959/63 is concerned. It ought to be noted that the respondent, when he cancelled the entry permit and made the declaration, was exercising powers vested in the Director General under Pt III of the Immigration Act 1959/63. |
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(20) |
It is submitted that the respondent has no independent power vested in him under s 65 to cancel the entry permit and make the declaration. This is clearly amplified by the words, ‘In exercising his powers under Pts I to VI as a special law for an East Malaysian state the director shall ....’ The respondent’s power in this case emanates from Pts I to VI and this is made clear by ss 64 and 65 of the Immigration Act 1959/63. Submit that the words of ss 64 and 65 clearly reflects the object and intention of Parliament. Since ss 64 and 65 regulates the exercise of the respondent’s powers vis-à-vis Pts I to VI, it must be strictly and meticulously followed: Majlis Peguam Malaysia v Joseph Au Kong Weng [1993] 2 MLJ 57. |
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(21) |
The applicant is a West Malaysian. The Federal Court in Syed Kechik v Government of Malaysia [1979] 2 MLJ 101 had to determine, inter alia, whether a West Malaysian’s entry permit may lawfully be cancelled. At the time when the Federal Court decided Syed Kechik’s case, the provisions of s 65 was in existence in the form prior to its amendment on 1 February 1997. H.H. Lee CJ (Borneo) (as he then was) alluded to it when he said at p 108: ‘As the director may have to act on the direction of the state authority in cancelling the entry permit ....’ |
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(22) |
The Federal Court in Syed Kechik v Government of Malaysia held that ‘the entry permit may lawfully be cancelled under s 14 of the Act’. Suffian LP (as he then was) had this to say:
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(23) |
While the 1997 amendment deleted the words ‘exercise any discretion vested in him to’, s 65(1) retained the words ‘In exercising his powers under Pts I to VI as a special law for an East Malaysian state ....’ Submit that this means the respondent must exercise his powers under s 14 according to law notwithstanding the direction from the state authority. In the present case, the respondent failed to do so. If he had done so, it is submitted that he would have come to the one and only conclusion that there was no material before him to satisfy the factual conditions precedent set out in s 14(1), (2) and (3). Similarly, he would also have come to the conclusion that there was no material before him to satisfy the factual conditions precedent set out in s 14(4) to make the declaration. |
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(24) |
Submit that five rules and maxims of interpretation would have to be considered here, namely
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(25) |
The respondent had read the provisions of s 65 in isolation when he should have looked at the Act as a whole. Edgar Joseph Jr SCJ in Chor Phaik Har v Farlim Poperties Sdn Bhd [1994] 3 MLJ 345 had this to say:
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(26) |
Edgar Joseph Jr SCJ in Coramas Sdn Bhd v Rakyat First Merchant Bankers Bhd [1994] 1 MLJ 369 said that:
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(27) |
In amending s 65 in 1997, why did Parliament retain the words ‘In exercising his powers under Pts I to VI as a special law for an East Malaysian state ....’? Section 64 must also be considered since it makes it clear that the respondent in Pt VII of the Act was applying the general operation of Pts I to VI as a special law for Sabah. Submit Parts I to VI represents the general system of law. |
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(28) |
S.C. Peh SCJ in Chan Chin Min v Lim Yok Eng [1994] 3 MLJ 233 said:
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(29) |
There must be a valid reason why Parliament had retained the words ‘In exercising his powers under Pts I to VI as a special law for an East Malaysian state ....’ when s 65(1)(c) was amended in 1997. Effect must be given to all the words in a statute because the legislature is deemed not to waste its words or that it will say anything in vain. Abdoolcader SCJ in Foo Loke Ying v Television Broadcasts Ltd [1985] 2 MLJ 35 said that:
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(30) |
Section 65(1)(c) must be read in the light of Pt III of the Act which deals specifically with entry permits to ensure a harmonious interpretation: Chiu Wing Wa v Ong Beng Cheng [1994] 1 MLJ 89 and Soon Kong Meng v Lee Thye [1995] 3 MLJ 54. |
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(31) |
To say that the respondent can cancel the entry permit and make the declaration under s 65(1)(c) independent of s 14 would lead to an absurd result in the light of the words ‘In exercising his powers under Pts I to VI as a special law for an East Malaysian state ....’ Submit that the correct approach would be to apply the purposive rule: Lia Phin Khian v Kho Su Ming [1966] 1 MLJ 1. |
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(32) |
The applicant was granted his entry permit on 27 December 1995 and at this stage the applicant had a substantive or vested right that in the event of the state authority giving a direction to the respondent under s 65(1)(c) the respondent would exercise his discretion or power under s 14 according to law. Certainly, the applicant had a legitimate expectation that in such an event the respondent would exercise his discretion or power under s 14 according to law. |
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(33) |
There is no express provision to the effect that the amendment to s 65(1)(c) has retrospective effect. |
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(34) |
The 1 February 1997 amendment purported to impair the existing right of the applicant and inflict a detriment to it as it takes away vested right and/or legitimate expectation under the existing law. Submit that in these circumstances, the 1997 amendment has no retrospective effect unless clearly indicated in the statute itself: National Land Finance Co-operative Society Ltd v Director General of Inland Revenue [1994] 1 MLJ 99, Lim Phin Khian v Kho Su Ming and Sio Seoh Beng v Koperasi Tunas Muda Sungai Ara Bhd [1995] 1 MLJ 292. |
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(35) |
As indicated in paras 7(g) and (h) hereof, the Immigration Act 1959/63 is a penal statute. Submit that this statute has to be strictly construed. If the amendment to s 65(1)(c) has created any ambiguity or doubt as to whether that amendment has taken away the respondent’s discretion or power under s 14, that ambiguity or doubt ought to be resolved in favour of the applicant. Reference is made to the authorities cited in para 7(h) hereof. |
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(36) |
One more matter needs to be considered here. Did the respondent make the declaration that the applicant’s presence in the state of Sabah is unlawful pursuant to the state authority’s directive? Section 65(1)(c) allows the state authority to direct the respondent ‘.... to declare that a specified person’s presence in the East Malaysian state is unlawful ....’ |
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(37) |
However, the state authority’s directive (exhibit ‘ASS-1’ in the affidavit in reply of Abdullah Sani Sulaiman sworn on 11 December 1997) gives only one directive, namely [translation] ‘.... hence gave instruction requiring tuan to cancel the entry permit to Sabah issued to the abovenamed.' |
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(38) |
However, the respondent in his ‘notice of cancellation of entry permit’ dated 11 November 1997 proceeds to tell the applicant ‘.... and your presence in the state of Sabah is declared unlawful’. What then was the basis for the respondent to make the declaration when there was no directive from the state authority to do so? It is pertinent to note that the respondent in his affidavit in reply sworn on 11 December 1997 has not at all touched on the subject of him making the declaration against the applicant. |
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(39) |
In the light of the matters stated in paras 11-38 hereof, it is submitted that the respondent can only lawfully cancel the applicant’s entry permit and make the declaration in accordance with the provisions of s 14 of the Immigration Act 1959/63. However, in the applicant’s case the respondent had:
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The thrust of that argument of Mr. Shafee is that the director was in fact exercising his powers under s 14 to cancel the entry permit and to declare the presence of the applicant in Sabah unlawful even though he acted under s 65 after being directed by the state authority. This is clear, according to learned counsel, from the fact that Parliament when it amended s 65 had retained the words ‘In exercising his powers under Pts I-VI as a special law for an East Malaysian state’. That argument appears at first glance attractive if not for the fact that learned counsel made no mention of the proviso in s 64(1) that the operation of s 14 shall be subject to and in accordance with Ch VII which contains ss 62-74. The effect of that provision is that s 14 must be read subject to whatever has been provided in ss 62 -74 of Pt VII. Whatever doubt there may be would surely be put to rest if s 1(2) is taken into account. That section says: ‘This Act applies throughout Malaysia subject to Part VII’.
This leads me to the question of whether the provision of s 14 had in any way been modified or changed by s 65 to which it is subject to. Section 14 reads like this:
Cancellation of, and declarations regarding, Permits and Certificates
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If one is to take the argument of Mr. Shafee to its logical conclusion, it would mean that if the director does not move to cancel any entry permits, the state authority cannot initiate that action. Was this the intention of Parliament? The history of the Act has to be gone into to see why the Act had undergone the various amendments.
Prior to Sabah and Sarawak joining Malaysia, there was the Immigration Ordinance 1959 in Malaya. At the formation of Malaysia, the Immigration Act of 1963 (Act 27 of 1963) was passed. The 1963 Act repealed the Sabah Immigration Ordinance of 1962 and extended the Immigration Ordinance 1959 of Malaya to Sabah. In addition, it enacted the special provisions in Pt II for the Borneo states. Section 1 of the 1963 Act provided that it shall be construed as one with the Immigration Ordinance 1959. Thereafter, the 1963 Act and the Immigration Ordinance 1959 were referred to as the Immigration Act 1959/63. In 1975, the Immigration Ordinance 1959 and the Immigration Act of 1963 were superseded by the Immigration Act 1959/63 (revised 1975). Part II (which contained special provisions for Sabah and Sarawak) of the Immigration Act of 1963 is now Pt VII of the revised Act. The Act is a consolidation of the Immigration Ordinance 1959 (‘the 1959 Ord’) and the Immigration Act 1963 (‘the 1963 Act’). The 1963 Act was passed upon the formation of Malaysia in 1963 to give special protection to Sabah and Sarawak on immigration matters. This protection was a pre-requisite for the formation of Malaysia as evidenced by the Malaysia agreement. This special protection had been entrenched by art 161E(2) of the Federal Constitution which prevents amendment to such matters as covered by the special protection without the concurrence of, in the case of Sabah, His Excellency, the Yang di-Pertua Negeri of Sabah. Section 14 relating to the cancellation of entry permits provides for only the Director General to act and for an appeal against his decision to the Minister. Section 64(3) made provision for a director for each of the East Malaysian states and for them to exercise the powers exercisable by the Director General. This is one of the modifications to be taken into account when applying s 14 to Sabah. Another modification is that the director must comply with the direction of the state authority that requires him to cancel an entry permit. Pausing here, it is pertinent to ask whether Parliament intended that the director should conduct the enquiries provided under s 14 before he complies with the direction. Another pertinent question is does Parliament intend to allow the director to defy the direction if after enquiries he somehow forms the view that the entry permit should not be cancelled? Before answering those questions, it must be borne in mind,
firstly that Sabah had the right to refuse admission to its state except for, as examples, certain category of persons, like judges, civil servants and ministers;
secondly, any person, including a Malaysian, who is not of Sabah origin is to be regarded as a non-citizen, that is, an alien (s 66(3); and
thirdly, all this came about as a condition for Sabah joining in the formation of Malaysia.
As for the question of whether Parliament had intended an enquiry be conducted before the director complied with the direction of the state authority, the answer is surely no. That requirement of s 14 had been modified or overridden by the right of the state authority to direct the cancellation of the entry permit. No such power was given to the state authority under s 14 because there was no such entity then and therefore it could not have been intended then that such an entity be subject to the requirement of making an enquiry before the cancellation of the entry permit. The entity of the state authority is the creation of Pt VII of the Act pursuant to the Malaysia agreement. Part VII is to give effect to the right of the state over immigration matters and contains the all new provision for the state authority to decide to cancel an entry permit and for the director to carry out its decision. There is no provision that the state authority must conduct an enquiry before deciding on cancelling an entry permit before the coming into existence of Pt VII and no new provision was made for an enquiry under Pt VII. Therefore, it is my view that no inquiry, whether by the director or by the state authority, is intended by Parliament. If the whole purpose of Pt VII was to protect the East Malaysian states over immigration matter, then it is unthinkable that Parliament would intend that those all important matters – in fact, they form one of the bases for Sabah agreeing to the formation of Malaysia – could be whittled away by a construction that allowed a director to defy the direction of the state authority which surely would be the effect if the requirement of an inquiry is imposed. Therefore, to accede to the construction urged by Mr. Shafee would have the effect of making the special provisions of Pt VII – which gives protection to the East Malaysia states on immigration matters – illusory because that construction would result in the state authority not being able to initiate any action to cancel any entry permits. As for the answer to the second question, it is clear that Parliament had intended that the director should follow whatever direction given by the state authority under s 65.
Mr. Shaffee had also argued that the power in s 65(1) is only the power to concur or to veto as it could not have been the intention of Parliament that the state authority should function like the Immigration Department in initiating action. I am unable to agree as the words used in the above provisions are clear and unequivocal. If Parliament had intended that the power in s 65(1) was only the power to concur, it would have said so, as it did in sub-ss (2) and (3). The argument that the state authority would function as an Immigration Department is also unsound because powers of investigation, interrogation, arrest or prosecution as provided in Pts I-VI are not necessary for the state authority to give directions under s 65(1).
Mr. Shafee had relied on Syed Kechik Syed Mohamed v Government of Malaysia [1979] 2 MLJ 101 to support his contention that the entry permit can only be cancelled under the provisions of s 14. The relevant facts of that case are these. On 16 June 1967, Mr. Syed Kechik was granted an entry permit to stay permanently in Sabah under s 10 of the Immigration Ordinance 1959, and on 18 January 1971, he was declared an ‘anak negeri’ that carries with it the right of a native of Sabah. He was later appointed a senator on 29 September 1973 representing Sabah affairs. He had vast business interests in Sabah and had settled down in Sabah. On 14 April 1976, there was a change of government after an election which saw a manifesto of the victorious party incorporating the expulsion of Mr. Syed Kechik as its aim should it win the election. A magazine also carried a story that steps were afoot to expel him from Sabah. On 27 May 1976, Mr. Syed Kechik took out an originating summons seeking a declaration:
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(a) |
that he is a person belonging to the state of Sabah in accordance with s 66(1)(a) of the Immigration Act 1959/63 (Act 155) read in conjunction with s 71(a) of the Act; |
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(b) |
that he is a permanent resident of the state of Sabah within the meaning of s 71(1)(a) of the Act; |
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(c) |
that his right to remain in Sabah conferred under s 10 of the Act in the form of an entry permit issued to him is still subsisting and that he cannot be deprived of that right by the state or any other authority; |
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(d) |
that that entry permit conferring permanent resident status on him in Sabah cannot lawfully be cancelled under s 14 of the Act; Alternatively – |
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(e) |
that the cancellation of the entry permit under the powers, if any, under s 14 would not affect the status of permanent residence of the applicant in Sabah for the purpose of ss 66(1)(a) and 71(1)(a) of the Act. |
There were other uncontroverted affidavit allegations that the Sabah government had proceeded to cancel timber licences and acquired lands belonging to Mr. Syed Kechik and his companies. The federal government resisted the application on the ground that there was no proceeding taken to remove him from Sabah. The trial judge dismissed the application on the ground that it was premature and that there was a machinery provided under the Immigration Act to deal with the matter. The Federal Court held that Mr. Syed Kechik had real fear that he may be expelled from Sabah and that it was desirable for the court to declare whether or not the federal and state governments have a right to expel the applicant. The Federal Court granted the declarations sought in prayers (a) and (b) because Mr. Syed Kechik was a native of Sabah and connected with Sabah. As for prayer (c), there was no dispute and it was declared that his right to remain in Sabah granted by the entry permit still subsisted. The Federal Court also held that the entry permit can be cancelled under s 14. That case dealt with a person who had already been in Sabah for more than two years after obtaining the entry permit and it did not deal with the question of a person who had been granted an entry permit but who had not yet acquired the status of belonging to the state under s 71(a). In any event, that case did not decide that for a cancellation of an entry permit under s 65, the provisions of s 14 must be satisfied. It merely says that s 14 is one provision which can be resorted to for cancellation of the entry permit. That case is, therefore, of no help to the applicant’s case.
As for the contention that the words ‘In exercising his powers under Pts I to VI as a special law for an East Malaysian state’ in s 65 would be rendered a surplusage if the provisions of s 14 are not given effect, I am unable to agree because effect was given to those words since those powers had been incorporated, as provided by s 64(1), ‘subject to and in accordance with’ Ch VII, that is subject to the right of the state authority to give direction to the director to cancel an entry permit. There is also disharmony between s 65 and s 14 since s 14 had been brought in line with s 65, that is s 14 is to be moulded and read according to the provisions of s 65 and other provisions of Pt VII.
It was further argued that the applicant had a substantive or vested right after he had obtained the entry permit on 27 December 1995 and that he had a legitimate expectation that the director would exercise his discretion under s 14 according to law. Mr. Foo replied, and I agree, that the entry permit does not confer any permanent right on the applicant until after the expiration of two years from the date of the grant of the entry permit and before that time it was subject to cancellation at any time by the state authority under s 65. The amendment to s 65 that was introduced in 1997 did not change the nature of the right acquired by the applicant. It was and still is a right liable to be cancelled under s 65 without the need to conduct any inquiry by the state authority or the director. Until the applicant had remained for two years and more after the grant of the entry permit, he is still an alien remaining in Sabah with the permission of the state authority with no substantive or vested right.
For the reasons I have stated, I am of the view that there is no question of error of law when the director followed the direction of the state authority to cancel the entry permit.
WHETHER THE RIGHT TO BE HEARD HAD BEEN EXCLUDED BY SECTION 59
The pre-1997 s 59 says: ‘No person and no member of a class of persons shall be given an opportunity of being heard before the Minister or the Director General makes any order against him in respect of any matter under this Act or any subsidiary legislation made under this Act.’ This was amended in 1997 to include any order of the state authority as well as not requiring the giving of an opportunity to be heard. This is how Mr. Shafee submitted:
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(42) |
The applicant’s application is to quash the cancellation and the declaration made by the respondent. The applicant is not challenging any order made by the state authority, who has made no order against the applicant in any event. |
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(43) |
Submit that the exclusion of right to be heard in s 59 does not apply to the cancellation and declaration made by the respondent. The matters stated in paras 7(a) to (h) hereof equally applies to s 59 as it does to s 59A. |
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(44) |
Would the applicant’s livelihood be affected by the cancellation of the entry permit and the making of the declaration? The answer is yes and reference is made to paras 20, 21, 22, 37 read together with paras 8, 9, 11, 12, 13, 23, 35, 37, 38, 39 and 42 of the affidavit of the applicant affirmed on 14 November 1997. The material facts contained therein have not been disputed and are therefore deemed to have been admitted. |
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(45) |
Submit that since the respondent’s cancellation and declaration affected the applicant’s livelihood, the applicant was entitled to procedural fairness, which includes the right to be heard and which is a fundamental right guaranteed under arts 5(1) and 8(1) of the Federal Constitution: Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan [1996] 1 MLJ 261. [Note: The Federal Court in Ng Hock Cheng v Pengarah Am Penjara [1998] 1 MLJ 153 held that the majority decision of the Court of Appeal in Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan where the Court of Appeal substituted its own views as to what the appropriate penalty for the employees’ misconduct for the view of the particular employer concerned was wrong in law. The Federal Court expressly stated that on this narrow point in question, the majority decision of the Court of Appeal cannot stand. The Federal Court did not disturb the other findings of the Court of Appeal in Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan.] |
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(46) |
In Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan, the Court of Appeal said, following the Supreme Court’s decision in Dewan Undangan Negeri Kelantan v Nordin Salleh [1992] 1 MLJ 697:
If s 59 is said to apply to the decisions of the respondent, it is submitted that the exclusion of the right to be heard is an unfair procedure and it must be struck down as offending art 5(1) read with art 8(1) of the Federal Constitution. |
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(47) |
Since the respondent had, by his decisions to cancel the applicant’s entry permit and to make the declaration, deprived the applicant of his livelihood without affording the applicant a right to be heard, it is submitted that both his decisions and the procedure (exclusion of right to be heard) must be struck down. |
As for the challenge not being against the decision of the state authority, what I said earlier about the challenge being in fact against the decision of the state authority applies as well because the director had no discretion in the matter but to cancel the entry permit as directed by the state authority. Any challenge to the action of the director would be futile as he was merely acting in a manner stipulated by s 65. Also, what I said in construing the privative clause as to apply to the act or decision of the director applies here as well with the result that the act or the decision of the director also enjoys the exclusion of the need to hear the applicant.
Mr. Shafee then, by the submission, argued that since the appellant’s livelihood had been affected by the cancellation of the entry permit, he was entitled to procedural fairness which includes the right to be heard and that since s 59 provides otherwise, it must be struck down as offending art 5(1) read with art 8(1) of the Federal Constitution, citing Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan [1996] 1 MLJ 261. Articles 5(1) and 8(1) of the constitution relied on by learned counsel read:
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8. |
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A unique feature of Malaysia is the various affirmative actions taken to help the Malays and natives (classified as bumiputras) which in the context of the constitution may look discriminatory because the Malays and natives are given preferential treatment. But our country recognizes that unless action is taken to help the Malays and natives, the freedom talked about in other countries and if implemented in total in our country may lead to much inequalities in terms of enjoying ‘life’ in Malaysia, which includes, as the Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan case held, all facets that are an integral part of life because the Malays and natives in many fields cannot compete as equals, given the sophistication and entrenchment of the other races in commerce. Looked at in the abstract, every such affirmative action would not pass the equality test laid down by the constitution. But our constitution must be interpreted to take into account and accord the affirmative actions validity. The same approach must also be taken in respect of the protection of the East Malaysian states. West Malaysia is in every aspect much more developed and sophisticated than East Malaysia. This our legislators had recognized by making provisions in the constitution and various legislation to protect the interests of the East Malaysian states against the citizens from West Malaysia. In a sense, it is discriminatory but it is in accordance with the law. Furthermore, unless the exercise of the right to grant and to cancel an entry permit by a state authority is made unquestionable in a court of law, which Parliament, in my view, had done by enacting the sections in Pt VII, the protection afforded to the East Malaysian states would be eroded. That construction accords well with the terms of the Malaysia agreement (which gave Sabah and Sarawak control over immigration matters) under which Sabah joined to form Malaysia. A construction otherwise would mean re-writing the terms of the Malaysia agreement against the will of the legislators of Sabah. It is for the legislators to decide whether such protection on immigration matters granted to the East Malaysian states should go, even though they, according to Mr. Shafee, appear draconian, and the court is in no position to do so.
It must be borne in mind that the applicant, according to the Act, is an alien, that is, a non-citizen, in so far as the state of Sabah is concerned. When he was granted the entry permit, there was in place the law that it can be cancelled at any time by the state authority and the grant of that entry permit was subject to that provision of the law which allows for cancellation. Therefore, if a cancellation does ensue, it is done in accordance with the law and it is, in my view, not in violation of either arts 5(1) or 8(1) of the constitution. Therefore, there is no question of s 59 being in violation of arts 5(1) or 8(1) of the constitution.
The case of JP Berthelsen v Director General of Immigration, Malaysia [1987] 1 MLJ 134 was cited when Mr. Shafee submitted that the applicant ought to have been given an opportunity to be heard. The facts of that case are these. An American journalist was, on 2 November 1984, granted an employment pass valid for two years. With about two more months to go, his employment pass was, on 26 September 1986, cancelled with immediate effect. The Supreme Court held that the journalist should have been afforded an opportunity to be heard before the cancellation of his pass. But Parliament had reacted after that case to take away the right to be heard by enacting s 59. Therefore, the rules of natural justice do not apply to the instant case. I turn now to the final point.
WHETHER REASONS MUST BE GIVEN FOR THE CANCELLATION
Mr. Shafee submitted that because no reasons were given for the cancellation, the decision to cancel must be irrational and the court ought to proceed to consider the materiality or relevance of the failure to provide reasons. Learned counsel cited Minister of Human Resources v National Union of Hotel, Bar and Restaurant Workers, Semenanjung Malaysia [1997] 3 MLJ 377. The facts of that case are totally different from the present and the subject matter there concerns the Trade Union Regulations 1959. Factually, it is of no help to the applicant’s case. As for the cited statement of law, it is also of no help. The Court of Appeal there held that the absence of reasons for a decision where there was no duty to give them could not of itself provide any support for the suggested irrationality of the decision.
It was also submitted that the present case is not one which involves public policy, national interest, public safety or national security and the court is therefore, submitted learned counsel, entitled to carry out an objective examination of the factual matrix presented to it to ascertain whether a reasonable tribunal similarly circumstanced would have come to the decision as the director did, citing in support R Rama Chandran v The Industrial Court of Malaysia [1997] 1 MLJ 145, Kumpulan Perangsang Selangor Bhd v Zaid Mohd Noh [1997] 1 MLJ 789 and Harris Solid State (M) Sdn Bhd v Bruno Gentil Pereira [1996] 3 MLJ 489.
None of those cases are concerned with the right of the East Malaysian states over immigration matters and the right of the executive, that is the state authority, to cancel an entry permit. Therefore, they cannot be relied on for deciding the questions herein. As for the question of public policy, I am unable to agree that this case is not concerned with it. It is very much so because it involves the manner in which a state executive or the state authority goes about overseeing immigration matters. It is unthinkable for the court to venture into making decisions as to when and whom should be issued an entry permit and as to when and why an entry permit should be cancelled. Those are surely matters of policy which are best left to the executive. Furthermore, since the director must act and had acted in compliance with the direction of the state authority as required by s 65, there is no question of giving any reason because he has no choice of action and it should be apparent to the applicant that the director had acted under direction. Also, by virtue of ss 59 and 59A, the director is not obliged to give any reasons.
CONCLUSIONS
For the reasons given, I dismiss the motion with costs to the director and the state authority.
Cases
Chin Choy v Collector of Stamp Duties [1979] 1 MLJ 69
Syed Kechik Syed Mohamed v Government of Malaysia [1979] 2 MLJ 101
Foo Loke Ying v Television Broadcasts Ltd [1985] 2 MLJ 35
H Rubber Estates Bhd v Director General of Inland Revenue [1979] 1 MLJ 115
Harris Solid State (M) Sdn Bhd v Bruno Gentil s/o Pereira [1996] 3 MLJ 489
JP Berthelsen v Director General of Immigration, Malaysia [1987] 1 MLJ 134
Kumpulan Perangsang Selangor Bhd v Zaid Mohd Noh [1997] 1 MLJ 789
Minister of Human Resources v National Union of Hotel, Bar and Restaurant Workers, Semenanjung Malaysia [1997] 3 MLJ 377
Petaling Tin Bhd v Lee Kian Chan [1994] 1 MLJ 657
R Rama Chandran v The Industrial Court of Malaysia [1997] 1 MLJ 145
Syarikat Kenderaan Melayu Kelantan Bhd v Transport Workers Union [1995] 2 MLJ 317
Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan [1996] 1 MLJ 261
Yeo Peck Chie v KS Gill & Co [1946] MLJ 131
Legislations
Federal Constitution: Art.5, Art.8, Art.161E
Immigration Act 1963
Immigration Act 1959/63: s. 14, s. 59, s. 59A, s. 62, s. 64, s. 65, s.66, s.71
Immigration Ordinance 1959
Representations
Muhammad Shafee Abdullah and Sugumar Balakrishnan (Sugumar & Co) for the applicant.
Nur Aini Zulkiflee (Senior Federal Counsel) for the first respondent.
Stephen Foo and Athmat Hassan (State Attorney-General Chambers) for the second respondent.
Notes:-
All translations are not a part of the original judgment.
This decision is also reported at [1998] 2 MLJ 217.
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