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2017 MarsdenLR 1246
COURT OF APPEAL KOTA KINABALU
AMBIGA SREENEVASAN – Appellant
Versus
DIRECTOR OF IMMIGRATION SABAH & ORS – Respondent
[Civil Appeal No: S-01(IM)(NCVC)-362-11-2015]
Petitioner Advocates:Michael Chow ,Respondent Advocate: Rahazlan Affandi Abdul Rahim
Judicial review is precluded under certain legislative ouster clauses except for procedural compliance.
Headnote:The appeal challenges the High Court's dismissal of the appellant's application for judicial review regarding entry into Sabah. The court upheld the ouster clause in Section 59A of the Immigration Act, which excludes judicial review except on procedural grounds. It found no merit in the argument that the case relied upon was outdated, maintaining that the principles from Pihak Berkuasa Negeri Sabah v. Sugumar Balakrishnan remain binding. The appeal was ultimately dismissed.
"[5] The other principle of constitutional interpretation that is relevant to the present appeal is this. Provisos or restrictions that limit or derogate from a guaranteed right must be read restrictively. Take art 10(2)(c). It says that Parliament may by law impose... (c) on the right conferred by paragraph (c) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, public order or morality. Now although the article says restrictions, the word reasonable should be read into the provision to qualify the width of the proviso. The reasons for reading the derogation as such reasonable restrictions appear in the judgment of the Court of Appeal in Dr Mohd Nasir Hashim v. Menteri Dalam Negeri Malaysia, [2006] 6 MLJ 213 ; [2007] 1 CLJ 19 which reasons are now adopted as part of this judgment."
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