Maria Chin Abdullah and the Continuing Saga of the Basic Structure Doctrine in Malaysia

Revolutionary ideas often take time to germinate in the jurisprudence of a nation, fluctuating in strength and acceptance in accordance with contemporary social and political circumstances. So it is with the ‘basic structure doctrine’ – the idea that in a country with a legally supreme written constitution, the power of constitutional amendment cannot be used to alter the constitutional document in a way that would destroy its core principles, or ‘basic structure’. [1]

The landmark case of Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2] was one episode in the continuing controversy over whether the ‘basic structure doctrine’ applies in Malaysia, although as we shall see, the majority opinion in that case has since come under sustained attack in subsequent Federal Court decisions. Today, the significance of Maria Chin lies in the sharp contrast between the majority judgments and the dissenting judgments with regard to the source of judicial power and the application of the ‘basic structure doctrine’ in the constitutional framework. The judgments in Maria Chin thus highlight the need for a clear understanding of the relationship between constitutional supremacy, separation of powers, and the basic structure doctrine.

Background

The facts of Maria Chin involved a decision by the immigration authorities to impose a three-year ‘travel ban’ beginning January 2016 on the appellant (Maria), who was then a prominent NGO leader, thereby preventing her from travelling abroad to South Korea. It subsequently emerged that the reason for imposing this ban was that the appellant had made comments ‘disparaging the Malaysian Government’ at several public events. 

The appellant sought judicial review of this ban, challenging the legal basis of the Director-General of Immigration (DGI)’s decision to impose the ban and the supposedly ‘unfettered discretion’ of the latter in making decisions under the Immigration Act 1959/1963 (‘Act 155’). This raised several constitutional issues, including whether there is a constitutional right under the Federal Constitution of Malaysia (‘FC’) to travel abroad and, even more importantly, the constitutionality of the ouster clause contained in section 59A of Act 155.

It can thus be readily seen that this ‘ouster clause’ amounts to a legislative provision seeking to oust the jurisdiction of the courts to review administrative decisions made under the Act, except in the narrow circumstances permitted by subsection (1). This in turn engages the issue of whether an Act of Parliament can do this, in the context of a constitutional system where (a) there is a written constitution which expressly proclaims itself to be the supreme law; [3] and (b) the separation of powers between the legislative, executive, and judicial branches is recognized as inherent. [4]

The Apex Court Judgments

Maria Chin was decided by a panel of seven justices led by the Chief Justice Tun Tengku Maimun, and four of the justices gave written opinions. Abdul Rahman Sebli FCJ (as His Lordship then was) gave the principal judgment, with which Rohana Yusof PCA, Hasnah Hashim FCJ and Mary Lim FCJ agreed. Mary Lim FCJ also gave a separate concurring judgment, in which Her Ladyship provided further analysis in support of Abdul Rahman FCJ’s conclusions, though not necessarily His Lordship’s reasoning towards these conclusions. 

The Chief Justice gave a strong dissenting judgment, with which Nallini Pathmanathan FCJ and Harminder Singh Dhaliwal FCJ agreed. Nallini FCJ also delivered a separate dissenting opinion. The reasoning in the two dissenting opinions are broadly consistent, with Nallini FCJ emphasizing the constitutional supremacy clause, Article 4(1), as additional support for the inviolable nature of judicial power within the Malaysian constitutional framework. [5]

The distinction between the conclusions reached by each of the judgments and the reasoning thereof is of crucial importance in understanding Maria Chin because the panel was in fact unanimous in its conclusion that the DGI had acted unlawfully in imposing the travel ban, but for different reasons. To appreciate the divergence in reasoning, it is essential to first understand the issues of constitutional and administrative law that were raised by the case. Two of them in particular will be focused on: 

1. Whether Act 155 provides legal basis for an unfettered discretion for the DGI to impose a travel ban, particularly for the reasons given in this case i.e. a citizen’s criticism of the Government; and

2. Whether the ouster clause contained in section 59A is valid and constitutional. [6]

The First Issue

On the first issue, the panel was unanimous that Act 155 does not provide the DGI with unfettered discretion, and therefore the Federal Court held that the ‘travel ban’ imposed on Maria was unlawful. However, different reasons were given by the justices in the majority and the minority. 

Abdul Rahman Sebli FCJ held that ‘on the peculiar facts and circumstances of this case, in particular the reason given by the Director General for imposing the travel ban, which reason (sic) turned out to be inappropriate … although the Director General has the discretion to impose a travel ban on a citizen, the discretion is not unfettered.’ [7] This appears to be an invocation of Wednesbury unreasonableness as a ground for reviewing the DGI’s decision, albeit that the judgment does not explain why the reason was inappropriate, having taken pains to refute the appellant’s argument that the ‘right to life’ in Article 5(1) FC includes a right to travel abroad. [8]

Mary Lim FCJ, in contrast, held that Act 155 simply does not provide for the power to regulate the right to depart from Malaysia, and therefore could not have provided legal basis for the DGI’s decision to impose the ‘travel ban’ on Maria. This corresponds to ‘want of jurisdiction’ or ‘illegality’ as a ground of judicial review, which is distinct from Wednesbury unreasonableness or ‘irrationality’. [10]

The dissenting judgments also answered the first question in the negative, but because they both accepted the appellant’s submission that the ‘right to life’ in Article 5(1) FC, when read ‘prismatically and purposively’ in light of recent authorities requiring this, does include the right to travel abroad. [11] Thus, in addition to the unlawful aspects of the DGI’s decision to impose the travel ban as a matter of administrative law, it was also unlawful as a matter of constitutional law, being an unconstitutional restriction of the appellant’s right to travel abroad.

The Second Issue

On the second issue, the approaches of the majority and the minority differed much more sharply. Here again, in order to understand the broader significance of this question, one must appreciate the context in which it arises, and its implications on the fundamental principles of constitutional supremacy and the separation of powers in Malaysia.

An ‘ouster clause’, such as the abovementioned section 59A, is commonly (though not exclusively) a statutory provision which seeks to limit or exclude the ability of the courts to judicially review certain actions and decisions by Executive officials (such as the DGI). It is thus a means by which one branch of government (the Legislature) attempts to curtail the scope of action of another branch (the Judiciary). Such clauses turn out to be surprisingly common: in Maria Chin, it was highlighted that ouster clauses occur in no less than 100 other pieces of legislation. [12] There are even ouster clauses occurring in the Federal Constitution itself, such as Article 150(8) and the Second Schedule, Part III, item 2.

Are such clauses compatible with the principle of constitutional supremacy, which forms a cornerstone of constitutionalism in Malaysia? [13] Article 4(1) FC provides that ‘this Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void’. To put it more directly, can an ouster clause prevent the courts from exercising judicial review when (as occurred in Maria Chin) it is asserted that a constitutional right has been infringed? 

These questions require us to examine the proper relationship between Parliament and the Judiciary in the constitutional framework of this country. Is the relationship between these branches of government a truly co-equal one, such that neither may interfere with the role and functions of the other; or does Parliament in some way have the upper hand, in that it may control the extent to which the courts are able to exercise their powers and functions?

Examination of the nature of judicial power in the constitutional framework brings us inescapably to a sordid episode of Malaysian constitutional history, in which Article 121(1) was amended by Parliament in 1988 (vide Act A631) so as to both delete the phrase vesting ‘the judicial power of the Federation’ in the two High Courts of Malaysia and to provide that these Courts ‘shall have such jurisdiction and powers as may be conferred by or under federal law.’ This, then, is where discussion of the ‘basic structure doctrine’ enters the picture, for the doctrine specifically addresses the question of whether Parliament may, by constitutional amendment, alter the separation of powers (an element of the ‘basic structure’) by limiting the jurisdiction and powers of the Judicial branch to whatever is conferred ‘by or under federal law’. This is where battle is joined between those who adopt a literal view that limits the courts’ powers in accordance with the plain reading of the post-amendment Article 121(1), [14] and those who assert that Parliament simply cannot by amending the FC curtail the inherent judicial power of the courts, and therefore that the courts continue to have a repository of judicial powers that it can deploy as and when necessary to safeguard the supremacy of the FC (including the protection of fundamental liberties). [15]

Seen in this light, it is not difficult to trace how the detailed judgments in Maria Chin proceeded almost inexorably from the judges’ answers to these foundational questions to their respective conclusions on the second issue. Abdul Rahman Sebli FCJ, in the principal judgment, traced the source of judicial power solely to the post-amendment Article 121(1) and, accordingly, found nothing objectionable about the ouster clause in section 59A. [16] Even more interestingly, the principal judgment attempted to roll back the judicial acceptance of the basic structure doctrine in the earlier trilogy of Federal Court cases, [17] asserting that there was nothing wrong with the Federal Court’s 1977 decision in Loh Kooi Choon [18] that Parliament has power to amend any provision of the Federal Constitution so long as the process laid down in art 159(3) is followed. [19]

Mary Lim FCJ’s concurring judgment emphasized that the ouster clause does not comprehensively oust the ability of the courts to judicially review, because the courts can always employ the UK courts’ well-known approach in Anisminic Ltd v Foreign Compensation Commission [20] to the effect that a statutory ouster clause does not preclude the courts from judicially reviewing a decision which is unlawful on the basis that the administrator acted without jurisdiction. [21] Importantly, Her Ladyship emphasized that the courts’ power, authority or jurisdiction ‘when approached for the exercise of its supervisory jurisdiction … is provided for in art 121 read together with art 4 and, more specifically, the Courts of Judicature Act 1964. [22]

Accordingly, although Mary Lim FCJ agreed with the principal judgment on the constitutionality of section 59A, this was because Her Ladyship held the view that the ouster clause does not actually deprive the court of the power of judicial review, and not because Parliament was empowered, under Article 121(1), to circumscribe the courts’ powers in that way. Her Ladyship did not pronounce on the question of basic structure; indeed, given the abovementioned reasoning, there was no necessity to do so in order to dispose of the case at hand. 

The dissenting judgments both asserted that section 59A is unconstitutional because it is inconsistent with Article 4(1) (the supremacy of the Federal Constitution) and Article 121(1) (the continued vesting of the judicial power of the Federation, even post-amendment, in the courts). [23] To achieve this broader, purposive understanding of judicial power as it subsists in the constitutional framework, the basic structure doctrine was invoked to deal with the amendments of 1988. [24]

From the foregoing discussion, it is clear that despite the panel’s unanimity in the outcome of the case (namely that the DGI’s decision to impose the ban was unlawful), there were deep divisions in the sequence of reasoning that led to this conclusion, particularly regarding the source and extent of judicial power in the constitutional framework. The divergent pronouncements leave unresolved the question of the constitutionality of ouster clauses in general, particularly when such clauses are crafted with a clear intent to exclude judicial review in toto.  [25]

Maria Chin: A Footnote in History?

In the months following the Maria Chin decision, the debate over the recognition of the ‘basic structure doctrine’ in Malaysian constitutional jurisprudence continued with considerable urgency. In Rovin Joty and Zaidi bin Kanapiah the Federal Court affirmed, in split decisions on both occasions, the position taken by the majority of the panel in Maria Chin that same year. [26] Remarkably, the majority decision in Rovin Joty was then set aside on review by the Federal Court in exercise of its inherent powers. [27] This set the stage for a different panel of the Federal Court to revisit the questions in Maria Chin in Dhinesh Tanaphll v Lembaga Pencegahan Jenayah & Ors. [28]

In Dhinesh Tanaphll, decided in April 2022, a unanimous three-judge panel of the Federal Court mounted a sustained attack on the majority position in Maria Chin, highlighting the ‘irreconcilable’ differences between the ‘principal judgment’ by Abdul Rahman Sebli FCJ and the ‘concurring judgment’ by Mary Lim FCJ on the source and ambit of judicial power under the FC. [29] In view of the ‘clear lack of cohesion on this fundamental issue’, ‘a clear ratio decidendi from the majority decision is effectively precluded’, and ‘[t]he principal and concurring judgments are, to that extent, irreconcilable.’ [30]

Accordingly, applying the authorities of BGS SGS Soma JV v NHPC Ltd [31] and Harper and Others v National Coal Board, [32] the Federal Court in Dhinesh Tanaphll held that it is not bound by the legal reasoning of the majority in Maria Chin, and was therefore at liberty to adopt the reasoning it deemed most coherent in dealing with the issue at hand, namely the constitutional validity of ouster clauses. [33] The Court proceeded to strike down the ouster clause in section 15B of the Prevention of Crime Act 1959, on the basis that it is inconsistent with article 4(1) FC by attempting to immunize all decisions made under POCA from judicial review.

The ruling in Dhinesh Tanaphll was recently affirmed in Ketheeswaran a/l Kanagaratnam v Public Prosecutor, [34] in which a five-member panel led by Chief Justice Tun Tengku Maimun held that ‘the interpretation to be afforded to the present Article 121(1) read with Article 4(1) has been settled beyond a shadow of doubt by numerous recent decisions of this Court’, and that it is the minority judgments in Maria Chin (affirmed in Dhinesh Tanaphll) which ‘accurately reflect the state of our constitutional law as regards the so-called basic structure doctrine … which is essentially the doctrine of constitutional supremacy and constitutional judicial review in Article 4(1) as complemented by its device of judicial power in Article 121(1).’ [35]

Conclusion 

Maria Chin is a complex decision which draws attention to the interwoven nature of core constitutional concepts such as constitutional supremacy, separation of powers, and judicial enforcement of the constitution. On one level, it illustrates the consequences that follow when Article 121(1) is interpreted in a strictly literal fashion on one hand, and in a broader purposive way on the other. Interestingly, both approaches are backed by lines of authority, though it cannot be gainsaid that recent apex court decisions have overwhelmingly adopted the latter approach. 

As regards the basic structure doctrine, Maria Chin may well have been an ‘eclipse’ of the doctrine[36] advanced so forcefully in the trilogy of Semenyih Jaya, Indira Gandhi, and Alma Nudo earlier, but as the preceding section shows, the skies are beginning to lighten again as the eclipse recedes.

References

[1]   The genesis of the ‘basic structure doctrine’ as a judicially enforceable principle is often associated with the Supreme Court of India’s judgments in Kesavananda Bharati v State of Kerala & Anor (1973) 4 SCC 225 and Minerva Mills Ltd v Union of India & Ors AIR 1980 SC 1789; although the notion that certain constitutional amendments might, by reason of their fundamental nature, require ‘something more’ than the stipulated two-thirds majority requirement in both Houses of Parliament has also been discussed in the landmark case of The Government of the State of Kelantan v The Government of the Federation of Malaya and Tunku Abdul Rahman Putra al-Haj [1963] 1 MLJ 355.

[2] [2021] 1 MLJ 750 (Federal Court).

[3] Federal Constitution, art 4(1).

[4] See the so-called ‘trilogy of cases’ establishing this relatively recently – Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Anor [2017] 3 MLJ 561; Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors [2018] 1 MLJ 545 (FC); Alma Nudo Atenza v Public Prosecutor [2019] 4 MLJ 1 (FC).

[5] Maria Chin, paras [265]-[268].

[6] These correspond to Questions 1 and 3 on which the Federal Court granted leave to appeal in Maria Chin respectively: see para [10]. Question 2 pertained to the constitutionality of s 59 of Act 155, which denies the applicant’s right to be heard before the DGI makes any order under the Act. For reasons of space, and because the determination of this question does not directly implicate the ‘basic structure doctrine’, this question is not canvassed here.  

[7] See para 695.

[8] See paras 644-663.

[9] See para 749-753.

[10] See Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9 per Lord Diplock.

[11] See paras 172-173; 402-404.

[12] See para 723 (per Mary Lim FCJ). 

[13] See eg Ah Thian v Government of Malaysia [1976] 2 MLJ 112.

[14] See eg the majority decision in Public Prosecutor v Kok Wah Kuan [2008] 1 MLJ 1 (per Abdul Hamid Mohamad PCA, as His Lordship then was); Danaharta Urus v Kekatong Sdn Bhd [2004] 2 MLJ 257 (FC); Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan [2002] 3 MLJ 72 (FC).

[15]  This view was established in the ‘trilogy’ of cases in n 4 above, which endorsed and built on the dissenting judgment of Richard Malanjum CJSS (as His Lordship then was) in Kok Wah Kuan, ibid

[16] See paras 542, 552, 559, 603-605, 689.

[17] See n 4 above.

[18] [1977] 2 MLJ 187.

[19] See para 690-693.

[20] [1969] 2 AC 147 (House of Lords).

[21] See paras 715-716.

[22] See para 813.

[23] See paras 76-77, 81-82, 129 (per Tengku Maimun CJ); 388-389 (per Nallini FCJ).

[24] Para 76. Similar sentiments were expressed by Nallini FCJ at paras 285-286.

[25] For an example of such a comprehensive ouster clause see National Security Act 2016 (Act 776), s 38; see also Federal Constitution, Art 150(8) – a near-complete ouster clause inserted by way of constitutional amendment in 1981.

[26] See Rovin Joty a/l Kodeeswaran v Lembaga Pencegahan Jenayah & Ors [2021] 2 MLJ 822 (FC); Zaidi bin Kanapiah v ASP Khairol Fairoz bin Rodzuan & other cases [2021] 3 MLJ 759 (FC).

[27] Nivesh Nair a/l Mohan v Dato Abdul Razak bin Musa, Pengerusi Lembaga Pencegahan Jenayah & Ors [2021] 5 MLJ 320 (FC). The Federal Court, like other apex courts, has the inherent power to review its own earlier judgments if necessary to prevent injustice or to prevent an abuse of its process: see Rules of the Federal Court 1995, r 137. 

[28] [2022] 3 MLJ 356 (FC).

[29] ibid paras 55-85.

[30] ibid paras 82, 85.

[31] [2020] 4 SCC 234 (Supreme Court of India).

[32] [1974] 2 All ER 441 (Court of Appeal, England).

[33] Dhinesh Tanaphll, para 93-94.

[34] Constitutional Reference No. 06(RJ)-1-03/2023(B), decided 5 January 2024 (Federal Court). 

[35] ibid para 14.

[36] See Ashgar Ali Ali Mohamed, Chitra Latha Ramalingam & Muhamad Hassan Ahmad, ‘The Eclipse of Basic Structure Doctrine: An Assessment of Clash Between Three Titans and Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor’ [2021] 3 MLJ clxxvii.