Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan

Case Name: Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan

Citation: [2002] 3 MLJ 72

Court: Federal Court of Malaysia

Date of Decision: 23 May 2002

Introduction

Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan [2002] 3 MLJ 72¹ is a landmark Malaysian case on constitutional rights and Sabah’s special immigration powers. It also decides the limits of judicial review in this area. The respondent’s entry permit was cancelled and he challenged the cancellation, arguing that the decision affected his rights and should be subject to judicial review.

The Federal Court considered whether the cancellation violated Article 5(1) of the Federal Constitution², whether sections 59 and 59A of the Immigration Act 1959/63³ excluded judicial review, and whether the special provisions in Part VII⁴ of the Act override its general provisions. The judgment is important because the Federal Court affirmed the special position of Sabah in controlling entry and residence and adopted a strict approach to statutory ouster clauses.

Facts of the Case

The respondent, Sugumar Balakrishnan, was a Malaysian citizen from Negeri Sembilan who had been living and working in Sabah for many years. As he was not a person belonging to Sabah under the relevant immigration provisions, his entry and residence in Sabah were subject to immigration control.

In December 1995, Sugumar was granted an entry permit allowing him to enter and remain in Sabah for two years. However, in November 1997, before the permit was due to expire, Immigration Sabah served him with a notice cancelling the permit. The cancellation was issued by the Sabah State Authority under section 65(1)(c) of the Immigration Act⁵. The cancellation affected his ability to remain in Sabah.

He challenged the decision by applying for an order of certiorari to quash the cancellation. He argued that the decision of the Sabah Immigration Authority was subject to judicial review. He also argued that, because he was given no opportunity to be heard before his permit was cancelled, his constitutional rights under Article 5(1) of the Federal Constitution had been violated. He therefore challenged the extent of the State Authority’s power and argued that the decision affected his livelihood.

The High Court dismissed his application. However, the Court of Appeal allowed Sugumar’s appeal and ordered the cancellation to be quashed. The Sabah State Authority then appealed to the Federal Court.

The Federal Court had to determine whether the cancellation could be reviewed by the courts, whether the relevant immigration provisions were constitutionally valid, and whether Sabah’s special immigration powers prevailed over the general provisions of the Immigration Act. The dispute therefore concerned whether the State Authority’s power to control his entry and residence could be challenged on constitutional and administrative law grounds.

Legal Issues

Issue 1: Whether the cancellation of the respondent’s entry permit violated Article 5(1) of the Federal Constitution.

Issue 2: Whether sections 59 and 59A of the Immigration Act validly excluded judicial review of the Sabah State Authority’s decision to cancel the respondent’s entry permit.

Issue 3: Whether Part VII of the Immigration Act conferred special immigration powers on Sabah that prevailed over the general provisions of the Act.

Arguments Presented

Respondent’s Arguments

The cancellation of his entry permit affected him because he was living and working in Sabah at that time. He argued that the cancellation affected his personal liberty and livelihood, in violation of Article 5(1) of the Federal Constitution. He argued that the right to personal liberty should be interpreted broadly enough to include interests connected with livelihood and continued residence.

He further argued that the State Authority’s decision should be subject to judicial review. The respondent relied on principles of administrative law and challenged the exclusion of judicial review through the Immigration Act. Although section 59A restricted judicial review, he argued that the courts retained jurisdiction where fundamental rights and principles of administrative fairness were involved.⁶

He also argued that the decision-making process was unfair because the right to be heard was excluded under section 59 of the Immigration Act. As a person whose livelihood and residence were affected, he should have been given an opportunity to present his case. Sugumar argued that the general provisions of the Immigration Act should restrict the State Authority’s powers, and that the special provisions applicable to Sabah could not be interpreted as conferring unrestricted power.

Appellant’s Arguments

The Sabah State Authority argued that sections 59 and 59A of the Immigration Act were clear statutory provisions limiting the courts’ power to review immigration decisions. Section 59 removed the right to be heard before an immigration order was made,⁷ while section 59A limited or excluded judicial review of decisions made under the Act. Judicial review is generally excluded, except where the challenge concerns procedural requirements under the Act or its regulations.

The appellant further relied on Part VII as the special statutory regime for Sabah and Sarawak. Under section 64(1), the general rules in Parts I to VI apply to East Malaysia, but subject to the special rules in Part VII. Therefore, if there is any inconsistency, the special provisions governing Sabah prevail.

Finally, the State Authority maintained that the cancellation of the entry permit did not violate Article 5(1) of the Federal Constitution. An entry permit does not provide an absolute right to stay in Sabah. The imposition of special restrictions on entry and residence in Sabah was constitutionally permitted, and the special immigration power is recognised by the Constitution and by legislation. Therefore, it does not violate the rights of a Malaysian citizen to freedom and liberty.

Court’s Reasoning and Analysis

Scope of Judicial Review

The Federal Court first examined the effect of sections 59 and 59A of the Immigration Act. The Court treated section 59A as a clear ouster clause. Justice Mohamed Dzaiddin observed that: “by deliberately spelling out that there shall be no judicial review by the court of any act or decision of the Minister or the decision-maker except for non-compliance of any procedural requirement, Parliament must have intended that the section is conclusive on the exclusion of judicial review under the Act.”⁸

This shows that Parliament expressly limited judicial review of decisions under the Immigration Act, except in procedural matters.

Therefore, the Federal Court rejected the broader approach adopted by the Court of Appeal, which had allowed the cancellation to be quashed. The Court rejected the argument that substantive unfairness could justify judicial review despite the limitation in section 59A. Allowing judicial review of immigration decisions on the ground of substantive unfairness would effectively undermine the statutory exclusion.

However, judicial review remains available for procedural non-compliance under the Act and its regulations, as section 59A expressly states. The Court held that the State Authority’s decision could not be challenged merely because the respondent considered it unreasonable or unfair.

Sabah’s Special Immigration Powers

The Court then considered the general provisions of the Immigration Act and Part VII of the Act, which specifically deal with Sabah and Sarawak. Section 64(1) states that Parts I to VI operate in Sabah and Sarawak subject to and in accordance with Part VII. The Federal Court treated Part VII as a special regime governing immigration in East Malaysia. Where the general provisions conflicted with the special provisions, the special provisions governing Sabah and Sarawak prevailed. Consequently, the special provisions under Part VII could not be restricted by relying on the general provisions of the Act.

This interpretation was consistent with the constitutional arrangements. Article 9(3) permits special restrictions concerning entry and residence in Sabah and Sarawak.⁹ This limits freedom of movement between Peninsular Malaysia and East Malaysia. These restrictions ensure that the East Malaysian states have power over entry and residence. Article 161E(4) also recognises the special immigration position of Sabah and Sarawak.¹⁰

The Court held that the State Authority possessed the special power under section 65(1) to direct the cancellation of the respondent’s entry permit.

Constitutional Rights

The Court next considered whether the cancellation violated the respondent’s constitutional rights. Under Article 5(1), no person may be deprived of life or personal liberty except in accordance with law. The Federal Court held that “personal liberty” concerned rights relating to the person or body and did not extend to a general right to earn a livelihood in a particular state.

The respondent’s entry permit allowed him to enter and reside in Sabah for a period of time. However, it did not give him an unrestricted right, as he remained subject to restrictions. Although the cancellation of the entry permit could affect his living in Sabah, the Court held that it did not amount to a deprivation of personal liberty under Article 5(1).

The Court also rejected an argument based on equality under Article 8(1). Equality before the law did not require identical treatment in every circumstance. Parliament was entitled to create a special immigration regime for Sabah and Sarawak because the Federal Constitution itself recognised their special position. The Court therefore concluded that the cancellation was allowed by law and did not violate Article 5(1) or Article 8(1).

Judgment and Ratio Decidendi

The Decision

1. The Federal Court held that sections 59 and 59A of the Immigration Act 1959/63 validly exclude the right to be heard and limit judicial review of immigration decisions, except for procedural non-compliance.
2. Part VII constituted a special immigration regime for Sabah and Sarawak and prevailed over inconsistent general provisions of the Act.
3. The cancellation of the entry permit did not violate Article 5(1) or Article 8(1) of the Federal Constitution.

Appeal Outcome: The Sabah State Authority succeeded.

Relief Granted: Sugumar’s application to quash the cancellation of his entry permit was dismissed.

Ratio Decidendi

The Federal Court held that the courts must respect statutory limits and cannot review immigration decisions made under special provisions, especially where Parliament uses clear statutory language to limit judicial power in this area. Under section 59A, judicial review of immigration decisions was limited to procedural compliance under the Act and its regulations.

Section 59 validly excludes the right to be heard before an immigration order is made. The statutory exclusion meant that the common law rule did not apply in the manner argued by the respondent.

The Court further established that Part VII provides a special immigration regime for Sabah and Sarawak, which allows the State Authority to exercise special powers. Its provisions prevail if they are inconsistent with the general provisions of the Act.

The cancellation of the respondent’s entry permit to Sabah did not violate Article 5(1) or Article 8(1). Personal liberty did not extend to a general right to earn a livelihood in Sabah, and the special immigration regime was recognised.

Critical Analysis

Significance of the Decision

The decision was significant because it confirmed the scope of Sabah’s special immigration power and the limited role of judicial review in this area. The Federal Court held that decisions under sections 59 and 59A of the Immigration Act could not generally be challenged through judicial review, except for procedural non-compliance. The decision affirmed that Part VII creates a special statutory regime for Sabah and Sarawak that reflects the constitutional position of the two states within Malaysia. By recognising these special positions, the judgment showed that constitutional equality does not necessarily require identical treatment across all parts of Malaysia.

Implications and Impact

The decision showed the tension between legislative power and judicial review. By upholding the ouster clause in section 59A, the Court affirmed the limits on judicial supervision of immigration decisions. This confirms that some public power is not always subject to the full protections of common law natural justice where there is clear legislation to that effect. In Maria Chin Abdullah v Ketua Pengarah Imigresen¹¹, the Federal Court reconsidered the constitutional validity of the ouster clause under sections 59 and 59A. Although the majority upheld the provisions, there was a dissenting view on whether Parliament could constitutionally limit the supervisory jurisdiction of the courts.

The decision also shows the constitutional protection of the positions of Sabah and Sarawak within Malaysia, and their immigration autonomy. The special immigration regime is supported by constitutional provisions recognising the states’ distinctive position. For individuals seeking to enter or reside in Sabah, the decision demonstrates that Malaysian citizenship or possession of an entry permit does not create an unrestricted right.

Critical Evaluation

The decision affirms Sabah’s autonomy, but its approach raises concerns about individual rights. By limiting judicial review and excluding the right to be heard, it leaves individuals with few remedies to challenge immigration decisions that may affect their livelihood. While this approach respects the legislation and Sabah’s special immigration powers, it raises concerns about remedies and executive accountability. This creates tension in the role of the courts in protecting individual rights. The later Maria Chin case illustrates that the constitutional status of ouster clauses remains contested. The case therefore provides a basis for examining whether statutory restrictions on judicial review can be reconciled with constitutional supremacy, the separation of powers and the rule of law. Nevertheless, the decision remains an important authority because it demonstrates a balance between liberty, administrative power and Sabah’s special immigration position.

Conclusion

The Sugumar Balakrishnan case remains an important authority on judicial review and Sabah’s special immigration powers. The Federal Court also confirmed that Malaysian citizenship does not create an absolute right to enter or reside in Sabah. The case highlights the tension between individual rights, parliamentary authority and Sabah’s autonomy. However, the strict approach to ouster clauses raises concerns regarding rights and judicial remedies. Ouster clauses must be considered alongside later developments, which demonstrate that the scope of judicial review remains an evolving issue in Malaysian constitutional law.

Footnote(S):

¹ Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan [2002] 3 MLJ 72

² Federal Constitution of Malaysia Article 5(1)

³ Immigration Act 1959/63 Sections 59, 59A

⁴ Federal Constitution Part VII

⁵ Immigration Act 1959/63 65(1)(c)

⁶ Immigration Act 1959/63 Section 59A

⁷ Immigration Act 1959/63 Section 59

⁸ Mohideen Abdul Kader, ‘Access to Justice’ (Malaysian Bar Council, 16 November 2005)

⁹ Federal Constitution: Article 9(3)

¹⁰ Federal Constitution: Article 161E(4)

¹¹ Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021] 3 MLRA 1

Bibliography

Cases

• Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan [2002] 3 MLJ 72.
• Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021] 3 MLRA 1.

Legislation

• Federal Constitution of Malaysia.
• Immigration Act 1959/63 (Act 155).

Online Legal Sources

• eLaw, ‘Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor’ [2021] 3 MLRA 1.