Sabah ban on Ambiga beyond court’s powers, says appeals court

ambiga-lawsuit-1PUTRAJAYA: Former Malaysian Bar president Ambiga Sreenivasan’s travel ban to Sabah was upheld because Malaysia’s highest court had in 2002 ruled that the judiciary cannot inquire why such a decision was made, the Court of Appeal said.

A three-man bench chaired by justice Mohd Zawawi Salleh said Section 59A(1) of the Immigration Act was drafted for the exclusion of judicial review in any court of any act done or any decision made by the home minister.

Zawawi said even the decision of the immigration department’s director-general or the authority of Sabah and Sarawak could not be questioned except for non-procedural compliance.

“In our view, the words of Section 59A(1) are clear and support the conclusion that the jurisdiction of the court is ousted. Therefore, the intention of Parliament to exclude judicial review is clearly manifested,” Zawawi said in delivering the court’s judgment.

The bench, which also comprised justices Abang Iskandar Abang Hashim and Ahmadi Asnawi, dismissed Ambiga’s appeal last July but the written grounds were posted on the judicial website only last week.

The lawyer-cum-human rights activist has filed an application to obtain leave to challenge the Court of Appeal ruling in the Federal Court.

Two others, Bersih chairman Maria Chin Abdullah and Petaling Jaya Utara MP Tony Pua have also filed similar appeals after having lost their cases in the High Court.

It is also unclear whether the Court of Appeal took into consideration the April 20 Federal Court landmark judgment delivered by Justice Zainun Ali that had re-established the concepts of judicial power, independence of the judiciary and separation of powers.

Zawawi said the bench was not persuaded to depart from the decision in Sugumar Balakrishnan v Pihak Berkuasa Negeri Sabah as it was bound by the doctrine of binding precedent when the material facts and issues were the same.

In that case, Sugumar sought the reinstatement of his entry permit to the state of Sabah but the Federal Court ruled that the right to personal liberty guaranteed by Article 5 of the Federal Constitution cannot be construed in broad, generous terms, and as such denied Sugumar’s application.

“Therefore, there is no rhyme or reason for us to depart from the decision of Sugumar’s case. In our view, Sugumar’s case was correctly decided based on sound principle of law,” Zawawi said in the 39-page judgment.

Zawawi said Ambiga has no right to be heard as it was clear from case laws that the constitutional rights as guaranteed under Article 5(1) could be taken away in accordance with law.

“Hence, Section 59 of the Act, which removes the audi alterem partem rule (right to be heard), which was duly enacted by Parliament is valid and constitutional,” he said.

Zawawi said the immigration and Sabah state authorities, as decided in Sugumar’s case, was not obliged to give reasons as to why Ambiga was banned from entering the state despite her having written a letter to them in December 2014.

On Sept 28, 2015, the High Court in Kota Kinabalu ruled that Sabah’s prohibition against entry to Ambiga will remain as it cannot review the powers of the state’s immigration department.

Ambiga applied for a review of the state’s refusal to allow her to enter Sabah on Nov 25, 2014 for a roadshow with pro-unity group Negara-Ku, of which she is a patron.

She was scheduled to attend the event along with the group’s co-patron Simon Sipaun and prominent Sabah politician Jeffrey Kitingan.