Maria Chin Abdullah v Ketua Pengarah Imigresen (W-01(A)-201-06/2017)

MENTERI DALAM NEGERI … RESPONDEN-RESPONDEN [ Dalam perkara mengenai Permohonan Untuk Semakan Kehakiman No. WA-25-129-07/2016 Dalam Mahkamah Tinggi Malaya di Kuala Lumpur Dalam perkara mengenai keputusan yang dibuat oleh Responden-Responden untuk menyenaraihitamkan Pemohon daripada ke luar negara yang dimaklumkan pada hari di mana Pemohon dijadualkan untuk meninggalkan Malaysia ke Korea Selatan pada 15.5.2016 Dan Dalam perkara Aturan 53 Kaedah-Kaedah Mahkamah 2012 2 Dan Dalam perkara Seksyen 25 Akta Mahkamah Kehakiman 1964 dan perenggan 1 Jadual di dalamnya Antara Maria Chin Abdullah … Pemohon Dan 1. Ketua Pengarah Imigresen 2. Menteri Dalam Negeri … Responden-Responden] CORAM UMI KALTHUM BINTI ABDUL MAJID, HMR ZALEHA BINTI YUSOF, HMR YAACOB BIN HAJI MD SAM, HMR 3 JUDGEMENT [1] The appellant in this appeal was the chairperson of Bersih 2.0, a coalition of 85 Malaysian non-governmental organisations (NGOs) advocating for a free and fair election in Malaysia. As a recognition to her contributions in the advancement of human rights in Malaysia, she had been awarded with a prestigious award known as the Gwangju Prize for Human Rights (“the Award”) by the South Korean May 18th Memorial Foundation. [2] She was scheduled to travel to South Korea on 15th May 2016 to attend and accept the Award at the Award ceremony. However at the Kuala Lumpur International Airport, she was stopped by the Malaysian Immigration authorities on the ground that her name had been blacklisted, thus, she was barred from travelling abroad. She later discovered that the decision of the respondents to blacklist her from travelling abroad was made since 6 January 2016. [3] Aggrieved with the decision of the respondents, the appellant had on 28 July 2016 filed an application for Judicial Review (JR) for inter alia, the following reliefs: 4

An order of certiorari to quash the decision made by the respondents to blacklist the appellant from travelling overseas, which was brought to the appellant’s attention on the day she was scheduled to leave Malaysia on 15.5.2016 (Impugned Decision);

A declaration that the Impugned Decision made by the respondents to blacklist the appellant from travelling overseas in the circumstances is a breach of Article 5(1), Article 8 and/or Article 10(1)(a) of the Federal Constitution and as a result, unconstitutional and void;

A declaration that the respondents do not have the power to reach the Impugned Decision and therefore acted in excess of jurisdiction;

A declaration that the respondents do not have an unfettered discretion in arriving at the Impugned Decision;

A declaration that the respondents cannot act under section 59 of the Immigration Act 1959/63 to deny the appellant a right to natural justice as this is in violation of the Federal 5 Constitution in particular Article 160 read together with Article 4 of the Federal Constitution and relevant case law;

A declaration that the following provisions of the Immigration Act 1959/63 are unconstitutional:

(a) section 59 which excludes the right to be heard; and/or

(b) section 59A which excludes judicial review.

An order of prohibition to prevent the respondents from making any subsequent decisions to blacklist the appellant from travelling overseas in similar circumstances; and

In the alternative to 6, an order of prohibition to prevent the respondents from making any subsequent decisions to blacklist the appellant from travelling overseas without furnishing her with the reasons and according her a right to be heard. [4] The Learned High Court Judge dismissed the JR application as Her Ladyship found that the respondents’ decision was not one that manifestly suffers from any of the recognised legal infirmities of illegality, irrationality 6 and procedural impropriety warranting any curial intervention. Hence, the appeal before us. The Appeal Before Us [5] Upon perusal of the Records of Appeal, it appeared to us that this JR application had actually become academic as the 1st respondent in paragraph 13 of his affidavit in reply, and the 2nd respondent, in paragraph 4 of his affidavit in reply as well as exhibit MHK-1, had shown that the ban had been lifted on 17 May 2016, two days after the appellant was stopped at the Kuala Lumpur International Airport and even before the JR was filed in Court. See Records of Appeal Volume 2(1) pages 93, 114, 174 and 175. [6] This issue that the matter had been rendered academic had been raised by the parties in their submission before the High Court. See Supplementary Record of Appeal, Notes of Evidence pages 19 to 52. Unfortunately this issue had not been addressed by the Learned High Court Judge in her grounds of judgement. 7 [7] We therefore invited the parties to address us on this issue as to whether the appeal was now academic as the travel ban had been lifted. Learned Counsel for the appellant had urged this court to continue to hear this appeal as there was no assurance that the respondents will not again blacklist the appellant in future. He argued that the decision of this court would also help others who are faced with the same problem. He relied heavily on the Federal Court case of Timbalan Menteri Keselamatan Dalam Negeri Malaysia & Ors v Arasa Kumaran [2006] 6 MLJ 689 and the Court of Appeal case of Nik Noorhafizi bin Nik Ibrahim & Ors v Public Prosecutor [2013] 6 MLJ 660 to support his argument. [8] Learned Senior Federal Counsel however urged the Court to dismiss the appeal as it is an exercise of futility and academic as the blacklisting had been lifted since 17 May 2016. He submitted that a court will not act in vain or grant academic declaration. He cited the Court of Appeal case of Ahmad Saidi bin Md. Isa v Timbalan Menteri Hal Ehwal Dalam Negeri & Ors [2006] 3 MLJ 208 and the Supreme Court case in Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors v Karpal Singh Ram Singh [1992] 1 CLJ (Rep) 212. 8 [9] With due respect to Learned Counsel for the appellant, the two authorities cited by him are distinguishable. Arasa Kumaran, supra was on the proper interpretation to be accorded to section 3(3)(a) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969. Nik Norhafizi case, supra, was on the constitutionality of section 27 of the Police Act 1967. Both involved points of statutory construction whereas the issue before us was on the discretionary power of the respondents whose decision under section 59A of the Immigration Act 1959/63 are not amenable to JR. To argue that the decision of this case will assist other blacklisted cases in future was in our view misplaced. Whether to impose a travel ban will involve consideration of facts of each case. No two cases are similar, [10] The travel ban against the appellant had been lifted. To ask this Court to make an order of prohibition to prevent the respondents from making any subsequent decision to blacklist the appellants from travelling overseas would mean to ask this Court to make an order on an issue which is not before the Court yet, something which is hypothetical let alone pre-empting the decision which has yet to be made. But it is trite that courts are not “debating club nor an advisory bureau” and will only decide on live, practical 9 questions and have no concern with hypothetical, premature or academic questions”. See Macnaughton v Macnaughton Trustees [1953] SC 387. [11] In a more recent case, the Federal Court in Husli @ Husly bin Mok v Superintendent of Lands and Surveys & Anor [2014] 6 MLJ 766 had held inter alia - “(5) The grant of declaration is in the discretion of court. The court will not act in vain and grant declarations that are of no utility or in regard to matters which are no longer ‘live issue’ or has become academic…..”. [12] In Re Barnato (deceased) Joel and Another v Banges and Others [1969] 1 All ER 515, the Court of Appeal of England dealt with a question whether the Crown, in this case the Inland Revenue Commissioners, could be joined in proceedings, whether started by originating summons or by writ, in order to decide future and hypothetical matters such as that of a presumptive claim for estate duty under section 43 of the Finance Act 1940. The Court of Appeal held that the question involved was future and hypothetical and dismissed the appeal against the order of Harman J which struck out the Inland Revenue Commissioners from being joined as defendants. 10 [13] This decision of Re Barnato, supra, had been followed by this Court in Ahmad Saidi, supra. Conclusion [14] For all the above reasons, we totally agreed with Learned Senior Federal Counsel that the appeal ought to be dismissed for being not only academic but hypothetical. We therefore unanimously dismissed this appeal with no order as to costs. Signed by Dated 20 August 2019 ( ZALEHA BINTI YUSOF ) Judge Court of Appeal Malaysia Peguamcara Perayu: Dato’ Dr. Gurdial Singh Nijar, Abraham Au Tian Hui, Ngeow Chow Ying, Latheefa Koya Tetuan Sreenevasan Peguambela dan Peguamcara Tingkat Bawah, Blok B Kompleks Pejabat Damansara Jalan Dungun Bukit Damansara 50490 Kuala Lumpur 11 Peguamcara Responden Shamsul BolHassan Senior Federal Counsel Bahagian Guaman No. 45, Persiaran Perdana Presint 4 62100 Putrajaya