8/5/2021 0 Comments
Written by Tan Jia Shen.
Edited by Ashley Khor Xin Hui.
Reviewed by Luc Choong and Celin Khoo Roong Teng.
The rule of law shares a cojoining fate with the inherent power of the judiciary. It loses its vestige when judges are made to wear blinkers in hearing certain disputes. Unfortunately, this is what ouster clauses seek to achieve. In this article, the author tries to build on Abdul Rahman Sebli FCJ’s recognition of the rule of law as part of Article 4(1) of the Federal Constitution in the Maria Chin decision, and argues that ouster clauses are unconstitutional for violating the rule of law.
To many, the majority Federal Court decision in Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor (‘Maria Chin’) stroke a fatal blow to the basic structure doctrine — a doctrine which has been robustly and progressively developed by many recent Federal Court cases. Some may attempt to distil the ratio of Maria Chin and separate the obiter. However, on the face of it, Maria Chin has the following impacts on Malaysia’s constitutionalism:
A. Revival of the Pedantic Reading of Article 5(1) in Loh Wai Kong, Overruling Lee Kwan Woh and Tan Teck Seng
The Federal Court rejected its prior decision of Lee Kwan Woh v Public Prosecutor (‘Lee Kwan Woh’) and Tan Teck Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor (‘Tan Teck Seng’), and accepted Government of Malaysia & Ors v Loh Wai Kong (‘Loh Wai Kong’) as good law. Loh Wai Kong adopted a narrow view of Article 5(1), namely personal liberty merely means freedom from physical restraint or coercion. It does not include rights to travel abroad or rights corollary to living a life of human quality. The court rejected as mere obiter the prismatic interpretation of Article 5(1), most articulately explained in Tan Teck Seng as:
‘Life appearing in Art 5(1) … incorporates all those facets that are an integral part of life itself and those matters which go to form the quality of life … it includes the right to live in a reasonably healthy and pollution-free environment.’
The net effect of this decision is the truncation of the right to life and personal liberty guaranteed under Article 5(1). This reversed the progressive development of constitutional interpretation, from prismatic to pedantic.
B. Affirming the Constitutionality of Section 59A of the Immigration Act 1959/63 Pursuant to Sugumar Balakrishnan
The ratio decidendi of the decision is an unconditional endorsement of the Federal Court decision of Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan (‘Sugumar Balakrishnan’). In essence, Sugumar Balakrishnan ruled that Section 59A of the Immigration Act 1959/63 was constitutional despite its effect of ousting judicial review. One of the main thrusts in the claimant’s submission in Maria Chin was that Sugumar Balakrishnan should be overruled in light of high authorities that recognised judicial review as a basic structure. However, the Federal Court dismissed this attempt by distinguishing the cluster of progressive appellate court decisions as factually dissimilar. In a mechanical fashion, the court accepted Sugumar Balakrishnan as the closest authority which has dealt directly with the same point.
C. Demise of the Basic Structure Doctrine
The last and arguably the most brutal impact of this decision is its rejection of the basic structure doctrine. In rejecting the basic structure doctrine, the Federal Court’s reasoning is four-fold:
What the Federal Court proclaimed here will be the crux of this paper. For completeness, it is produced in verbatim:
‘The common law concept of rule of law is embodied in Article 4(1) of the Federal Constitution. But even if Article 4(1) is not there in the Federal Constitution, it will be a stretch to argue that the Malaysian Parliament can pass any law it pleases. All branches of the government, both in the UK and in Malaysia are subject to the rule of law, and this of course includes the judicial arm of government.’ (Emphasis added)
This seems to suggest that the Parliament can only pass laws that conform to the rule of law. The acceptance of the rule of law as an operational concept embodied in Article 4(1) creates a new prospect for future constitutional development. In this article, the author argues that the rule of law doctrine necessarily limits the Parliament from ousting the court’s jurisdiction in judicial review. Therefore, ouster clauses such as Section 59A of the Immigration Act 1959/63 will be void for being inconsistent with the Federal Constitution — not on the basic structure doctrine, but on the basis of the rule of law.
II. THE RULE OF LAW IN MALAYSIA
The expression of the rule of law was first coined by Professor AV Dicey in 1885, making it a concept that outlives the oldest of us. To paraphrase Abdul Rahman Sebli FCJ’s words in the Maria Chin decision, it was also a ‘British concept’ that organically developed in the UK long before Dicey gave it a name. It has since been recognised as the bedrock of the British polity. In the UK Constitutional Reform Act 2005, Section 1 statutorily formalised this principle: ‘This Act does not adversely affect — (a) the existing constitutional principle of the rule of law.’
Domestically, the Malaysian jurisprudence is replete with the endorsement of the rule of law. Unfortunately, most cases lack an in-depth analysis of this doctrine necessary to operationalise it, perhaps due to our own inclination and reliance on the basic structure doctrine. Nevertheless, the formulation of the doctrine of the rule of law stands out in two Federal Court decisions — namely Lee Kwan Woh and Alma Nudo.
In Lee Kwan Woh, the Federal Court interpreted the idea of ‘law’ in Article 5(1) to encompass the rule of law embodied in the common law. Although Maria Chin has now given the rule of law a higher standing by affixing it in Article 4(1), Lee Kwan Woh was the first to introduce the rule of law as part of a specific provision in the Federal Constitution. The upshot is that although the Parliament may enact laws to limit a person’s right to life or personal liberty, the law must be in accordance with the rule of law. This means that it must be procedurally and substantively fair. Here, the rule of law was invoked to import the concept of substantive fairness. No more, no less.
The Federal Court gave the rule of law a more robust analysis in Alma Nudo. In one of His Lordship’s last judgments, former Chief Justice Richard Malanjum articulated that the central tenet of the rule of law is the equal subjection of all persons to ordinary law. The law under the rule of law should minimally satisfy a few non-exhaustive basic requirements; namely, it should be:
Even so, the exposition of the full width of the rule of law is nowhere complete. In His Lordship’s dissenting judgment in JRI Resources Sdn Bhd v Kuwait Finance House (M) Bhd, former Chief Justice Richard Malanjum stated that the concept of ‘judicial power’ is ‘inextricably intertwined with the principle of the rule of law’ because the rule of law requires that every power must have legal limits. Unfettered discretion is contrary to the rule of law. Therefore, the judiciary must have the power to determine whether, how and in what circumstances those limits have been exceeded. By framing judicial power as an imminent component of the rule of law, the then Chief Justice hinted at the possibility that any ouster clauses can be circumvented or struck down for violating the rule of law. There we have it, a silhouette of what the doctrine of the rule of law could look like in Malaysia.
To further expand the doctrine, the UK offers a valuable guide. This is both because it is the birthplace of the rule of law doctrine, hence the doctrine has been more assiduously developed there, as well as because the Federal Court in Maria Chin has tried very hard to drag Malaysia jurisprudence closer to the orbit of the UK jurisprudence as opposed to the Indian jurisprudence.
III. THE RULE OF LAW IN UNITED KINGDOM
Theoretically, the UK rule of law should give the judiciary unlimited jurisdiction of judicial review, as derived from Dicey’s principle that the cornerstone of the rule of law is the absence of arbitrary power. Naturally, it must mean the courts are empowered to review decisions that are arbitrary in nature.
One might be guided by Lord Bingham in his modern formulation of the rule of law. Following the legislation of the Constitutional Reform Act 2005 that formally recognised the rule of law as an ‘existing constitutional principle’ of the UK, Lord Bingham has delivered a public lecture that was later developed to be an award-winning book, in which His Lordship has identified seven sub-rules of the rules of law:
The sixth sub-rule seems to hit right in the bull’s eye. It seems to suggest that the English rule of law gives judges unlimited power of judicial review. Only this suggestion is misconceived. This is because the UK, ironically, is also the birthplace of parliamentary sovereignty.
This has created a vexed situation. On one hand, parliamentary sovereignty means the Parliament is free to legislate ouster clauses to make judges look away from certain matters; on the other, the rule of law requires judges to look closely to sanction arbitrary executive decisions.
There is something uniquely British that allowed the two inherently contradictory elements to coexist in happy harmony. As explained by Lord Woolf, that the UK has coped without a written constitution is a result of the British national culture. It is the result of ‘a tradition of mutual respect, restraint, and co-operation between the three arms of Government’. Tensions have been defused by ‘good sense and goodwill on all sides.’ What this means is that the UK Parliament has refrained from locking horns with the judiciary, and vice versa.
Another reason for the successful sustenance of this system is the close relationship between the judiciary and legislative. The most glaring example is the dual role of the Law Lords in the House of Lords as both judges and parliamentarians, until very recently the Constitutional Reform Act 2005 that separated them.
In spite of it all, judges still find themselves caught between a rock and a hard place when they face ouster clauses. At the risk of over-simplification, the UK courts generally reconcile the rule of law and parliamentary sovereignty in the following two steps:
First, the court attempts to read down the ouster clauses with creative tools of interpretation and presumes the Parliament’s intention in favour of judicial review. It is only if the Parliament’s wordings to specifically oust the court’s jurisdiction are so clear that such creative reading is impossible will the judges principally turn away from the matter.
This could be observed in a slew of cases. The most notable ones include Anisminic Ltd v Foreign Compensation Commission (‘Anisminic’) and Regina (Privacy International) v Investigatory Powers Tribunal (‘Privacy International’).
In Anisminic, Section 4(4) of the Foreign Compensation Act 1950 excluded judicial review on decisions made by the Foreign Compensation Commission. The court did not hesitate to hold that ‘determination by the commission’ refers only to lawful determination — hence any determination made in excess of jurisdiction, of bad faith, breach of natural justice et cetera are not within the scope of the ouster clause at all. The House of Lords gave itself that right to patrol around the boundary of the executive power.
This right was stretched to its limit in Privacy International. Here, the ouster clause concerned was more robust and protective. Section 67(8) of the Regulation of Investigatory Powers Act 2000 specifically excluded ‘other decisions of the Tribunal (including decisions as to whether they have jurisdiction)’ from judicial scrutiny.
The main difference between Anisminic and Privacy International is that there was technically no ousting of judicial review in the latter. The impugned ouster clause exclusively allocated the responsibility of judicial review to the Investigatory Tribunal, which exercised judicial function. This tribunal composed of judges that could determine questions of law and accord fair trial and due process. This stands in stark contrast with Foreign Compensation Commission in Anisminic, which was purely administrative and did not exercise judicial function.
Therefore, the question in Privacy International was not whether the UK High Court has unlimited jurisdiction to review an administrative decision as in Anisminic. That is already trite. The question was whether the rule of law could be interpreted to give the UK High Court supervisory jurisdiction over the judicial tribunal’s decision in light of the ouster clause.
The UK Supreme Court eventually ruled in a slim majority that such supervisory power should be presumed to exist unless excluded by the clearest and most explicit words. In this context, the court said what was quoted by Maria Chin: ‘the Judicial review can only be excluded by “the most clear and explicit words” (Cart  QB 120, para 31)’.
With respect to the Federal Court in Maria Chin, it is wrong to quote this line as if it approves that the rule of law could allow an absolute ouster from whatever form of judicial review. This is made explicit by the Supreme Court’s pronouncement that there are fundamental requirements of the rule of law which ‘no form of ouster clause (however clear and explicit) could exclude from the supervision of the courts.’ No ouster clause could completely prevent judicial review on the excess of jurisdiction, abuse of jurisdiction as well as breach of natural justice.
That said, an important question still looms unresolved. If the goodwill and mutual restraint between the UK Parliament and UK courts wear thin, can the UK Parliament lock horns with the rule of law by specifically excluding any and all forms of judicial review — be it by courts or by a tribunal on a matter?
That the Supreme Court in Privacy International has refused to answer this question shows the strained constitutional tension between the judiciary and the Parliament.
‘First, both parties start from the premise that the relationship between Parliament and the courts is governed by accepted principles of the “rule of law”. Unsurprisingly, there is no challenge to the proposition (per Lord Dyson JSC, quoted at para 96 above) that there is—“no principle more basic to our system of law than the maintenance of [the] rule of law itself and the constitutional protection afforded by judicial review.” We are not therefore concerned with the difficult constitutional issues which might arise if Parliament were to pass legislation purporting to abrogate or derogate from those accepted principles.’ (Emphasis added)
However, there are signs that when push comes to shove, the British judges are itching towards sacrificing parliamentary sovereignty to preserve the rule of law. In R (Jackson) v AG, Lord Steyn said in obiter that the supremacy of Parliament is a construct of the common law created by judges. Therefore, it is ‘not unthinkable that circumstances could arise where the court may have to qualify a principle established on a different hypothesis of constitutionalism’. If exceptional circumstances such as attempt to abolish judicial review arises, the Supreme Court may have to consider whether ‘this is constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish’.
In the same case, Lord Hope equated the evolution of the UK Constitution meant that the absolute legislative sovereignty of Parliament is gradually but surely being qualified. Lord Carswell also hinted at the possibility of such rejection of the Parliament’s will:
‘The courts will treat with particular suspicion (and might even reject) any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial scrutiny.’ (Emphasis added)
This conflict could even be observed in the legislative process involving Law Lords in the House of Lords. In his lecture, Lord Woolf described the attempt of the House of Commons to introduce the Asylum and Immigration (Treatment of Claimants) Bill, which contained an ouster clause that was so extensive that it prevents the courts from adjudicating on whether the new appeal tribunal has acted in accordance with the law.
To quote Lord Woolf, ‘a clause of the nature … was fundamentally in conflict with the rule of law and should not be contemplated by any government if it had any respect for the rule of law’; and ‘I am not over-dramatising the position if I indicate that, if this clause were to become law, it would be so inconsistent with the spirit of mutual respect between the different arms of government that it could be the catalyst for a campaign for a written constitution… What is the use of courts, if you cannot access them?’
All of this shows an overarching trajectory of qualifying parliamentary sovereignty to make it compatible with the UK rule of law. Of course, that the UK courts can reject an ouster clause despite the Parliament’s clear intention is far from established in the UK jurisprudence. Many jurists object to this view. However, their objections are solely because of the special parliamentary sovereignty character of which the British people are proud. For example, this can be seen in Lord Bingham’s criticism against R (Jackson), where His Lordship contended that parliamentary sovereignty has existed for centuries and was not created by judges, and therefore cannot be changed by judges.
It is perhaps apt to describe the UK judiciary as walking on a tightrope between the rule of law and parliamentary sovereignty. The impetus of the UK courts to nullify clear ouster clauses has only been suppressed by its own parliamentary sovereignty. One can make the hypothetical case that if the UK is of constitutional supremacy, it most probably would have developed the rule of law doctrine which operates to annul clear ouster clauses that cannot be circumvented by tools of interpretation. It may even be said that the UK version of the rule of law has been crippled by its parliamentary sovereignty.
Fortunately, Malaysia is free of the shackles of parliamentary sovereignty. As opposed to the UK courts which can find no legal basis to strike down a parliament-made law, we have Article 4(1) that empowers the Malaysian courts to strike down any law that is inconsistent with the Federal Constitution. The rule of law was invented in the UK, but it has found better soil to grow in countries of constitutional supremacy like Malaysia.
Therefore, the words of Suffian LP in Ah Thian v Government of Malaysia still rings true:
‘The doctrine of the Supremacy of Parliament does not apply in Malaysia. Here we have a written constitution. The power of Parliament and of State legislatures in Malaysia is limited by the Constitution, and they cannot make any law they please.’
Based on the analysis, it is intuitive to argue that if the Malaysian courts operationalise the rule of law, we will be equipped to strike down complete ouster clauses. It is therefore rather perplexing that in embracing the rule of law doctrine, the Malaysian Federal Court would maintain that we are in a similar position with the UK jurisprudence.
It is true that we employ similar methods of interpretation in approaching ouster clauses. In the case of Maria Chin, Mary Lim JFC dissected Section 59A of the Immigration Act with the Anisminic approach and held that the Federal Court was not barred from exercising judicial review. However, what differs is the next step — if there is a clear ouster clause that could not be circumvented, Malaysian courts could strike it down with Article 4(1) while the UK courts could not, at least not without revolutionalising the UK jurisprudence.
IV. THE RULE OF LAW AND THE BASIC STRUCTURE
From a broader picture, the rule of law doctrine necessarily converges with the basic structure doctrine at a certain point. It is because both doctrines are borne out of the same need to prevent malpractice of the Parliament in attempting to distort the rule of law. As succinctly put by Hamid Sultan Bin Abu Backer JCA in the Court of Appeal case of Pathamanathan v Indira Gandhi, the doctrine of basic structure was innovated by Indian judges to overcome the shortcoming of the UK-style rule of law borne in parliamentary supremacy in the early post-independence days. It is difficult to ensure that the Parliament does not interfere with the constitutional framework and respects fundamental rights.
However, there are noticeable differences between these two doctrines. The basic structure doctrine protects the existing features of the Federal Constitution. As nicely catalogued by writer Iqbal Harith, our courts have recognised fundamental liberties in Part II of the Federal Constitution; separation of powers and judicial powers and democracy. Another imminent feature of our Federal Constitution is federalism. The court could always develop more.
On the contrary, the rule of law doctrine, while broad, necessarily revolves around integral concepts that have been expounded — such as arbitrary actions, equality of law, natural justice, et cetera. These are established notions that have proven integral in a democracy with good governance. While we can develop our own rule of law doctrine, it is unlikely for the court to stretch beyond this circle of concepts to incorporate local concepts such as federalism.
Therefore, the rule of law doctrine has the benefit of certainty, while the basic structure doctrine provides more flexibility against legislative assaults towards the Federal Constitution. Judges might find comfort in this certainty and be more open to developing this doctrine.
It should be reminded that the enunciation of the rule of law doctrine in Maria Chin is shrouded in contradictions. On one hand, the Federal Court opted for a textual and pedantic interpretation of the Federal Constitution; on the other hand, it introduced the rule of law doctrine that is not textually found in the Federal Constitution. On one hand, the Federal Court spelt out the rule of law that is inherently incompatible with parliamentary sovereignty; on the other hand, it said there is ‘no difference in principle’ between Malaysia and the UK.
Despite that, the rule of law doctrine provides an attractive alternative for litigants to challenge ouster clauses made by the Parliament. This is necessary when the basic structure doctrine has been dismantled and now rests in ruination after two Federal Court cases.
Ultimately, it might be the solution to strike down infamous ouster clauses that are detrimental to the rule of law. One such example is Article 150(8) of the Federal Constitution, which has prevented any judicial review of the Proclamation of Emergency declared in 2021. This doctrine is still in its embryo, but the development of law depends on creative lawyers and brave judges. It is hoped the judiciary’s jurisdiction to judicial review lives on, no matter in what name.
Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the views of the University of Malaya Law Review, and the institution it is affiliated with.
 Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor  1 MLJ 750.
 Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals  1 MLJ 545; See also Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case  3 MLJ 561; See also Alma Nudo Atenza v PP and another appeal  4 MLJ 1.
 Lee Kwan Woh v PP  5 MLJ 301.
 Tan Teck Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor  1 MLJ 261.
 Government of Malaysia & Ors v Loh Wai Kong  2 MLJ 33.
 See footnote 1 above, 663.
 Federal Constitution (Malaysia) art 5(1).
 See footnote 4 above, 289.
 Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan  3 MLJ 72.
 Immigration Act 1959/63 (Act 155) (Malaysia) s 59A.
 See footnote 1 above, 510.
 See footnote 1 above, 449.
 Malaysia Act 1963 (UK) c 35.
 See footnote 1 above, 547.
 See footnote 1 above, 562.
 PP v Kok Wah Kuan  1 MLJ 1.
 Gopal Sri Ram. (2017). The Dynamics of Constitutional Interpretation. Malayan Law Journal Articles, 4(i), 13.
 See footnote 1 above, 603; See also footnote 2 above.
 Thomas Bonham v College of Physicians  77 ER 646.
 See footnote 1 above, 684.
 See footnote 1 above, 685.
 Federal Constitution (Malaysia) art 4(1).
 See footnote 10 above.
 Constitutional Reform Act 2005 (UK) c 4, s 1(a).
 See footnote 3 above.
 Alma Nudo Atenza v PP & Another Appeal  3 MLRA 1.
 See footnote 3 above, 18.
 See footnote 26 above, 103-105.
 JRI Resources Sdn Bhd v Kuwait Finance House (M) Bhd (President of Association of Islamic Banking Institutions Malaysia & Anor, interveners)  3 MLJ 561, 21-23.
 Dicey, A. V. (1915). Introduction to the Study of the Law of the Constitution. (8th ed.). Indianapolis: Liberty Fund. ‘Absence of arbitrary power, equality before the law or the equal subjection of all classes to the ordinary law of the land administered by ordinary law courts and that the Constitution is not the source but the consequence of the rights of individuals, as defined and enforced by the courts.’
 See footnote 24 above.
 Bingham, T. H. (2007). The Rule of Law Lecture. Cambridge Law Journal, 66(1), 67, 69.
 See footnote 32 above, 72.
 See footnote 32 above, 73.
 See footnote 32 above, 75.
 See footnote 32 above, 77.
 See footnote 32 above, 78.
 See footnote 32 above, 85.
 Woolf, H. K. (2004). The Rule of Law and a Change in the Constitution. Cambridge Law Journal, 63(2), 317-330.
 See footnote 39 above.
 Anisminic Ltd v Foreign Compensation Commission  2 AC 147.
 R (in the application of Privacy International) v Investigatory Powers Tribunal and others  AC 491.
 Foreign Compensation Act 1950 (UK) c 12, s 4(4).
 ‘The determination by the commission of any application made to them under this Act shall not be called into question in any court of law.’
 Regulation of Investigatory Powers Act 2000 (UK) c 23, s 67(8).
 ‘Determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.’
 See footnote 42 above, 122.
 See footnote 42 above, 119.
 R (Jackson and others) v Attorney General  1 AC 262, 102.
 See footnote 49 above, 104.
 See footnote 49 above, 159.
 Asylum and Immigration (Treatment of Claimants, etc.) Bill 2003 (UK).
 See footnote 39 above, 328-329.
 Bingham, T. H. (2011). The Rule of Law. United Kingdom: Penguin Books, 207.
 Ah Thian v Government of Malaysia  2 MLJ 112 (Suffian LP).
 See footnote 1 above, 715.
 Pathamanathan a/l Krishnan (also known as Muhammad Riduan bin Abdullah) v Indira Gandhi a/p Mutho and other appeals  4 MLJ 455, 97 (Hamid Sultan JCA).
 Iqbal Harith Liang. (2020, Mar 7). The Chronicles of The Basic Structure Doctrine. University of Malaya Law Review. Retrieved from <https://www.umlawreview.com/lex-in-breve/the-chronicles-of-the-basic-structure-doctrine>. Site accessed on 18 Apr 2021.
 See footnote 26 above, 37.
 Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case  3 MLJ 561, 58.
 Muhammad Hilman bin Idham & Ors v Kerajaan Malaysia & Ors  6 MLJ 507, 59.
 Ketua Pengarah Jabatan Alam Sekitar & Anor v Kajing Tubek & Ors And Other Appeals  3 MLJ 23, 40.
 See footnote 1 above; See also Rovin Joty a/l Kodeeswaran v Lembaga Pencegahan Jenayah & Ors and other appeals  2 MLJ 822.
 Federal Constitution (Malaysia) art 150(8).
 Rahmat Khairulrijal (2021, Mar 11). Opposition lawmen fail in attempt for judicial review of suspension of parliament. New Straits Times. Retrieved from <https://www.nst.com.my/news/crime-courts/2021/03/672881/opposition-lawmen-fail-attempt-judicial-review-suspension>. Site accessed on 18 Apr 2021.