MARIA CHIN ABDULLAH v KETUA PENGARAH IMIGRESEN & ANOR [2021] 1 MLJ 750: OUSTER CLAUSE AS LIMITATION OF NATURAL JUSTICE
- Mar 14
- 6 min read
Lai Hao Voon, Multimedia University
This case discusses the constitutional and administrative law issues arising from the interaction between judicial review, natural justice, and statutory ouster clauses. The ouster clauses in this case are sections 59 and 59A of the Immigration Act 1959/63 (MY). Section 59 denies the right to be heard, while section 59A limits judicial review of any act or decision made by the Minister or the Director General, or, in the case of an East Malaysian State, the State Authority, under this Act, except with regard to questions relating to compliance with procedural requirements of the Act or its regulations. One practical example of this power is the imposition of travel restrictions.
In this case, the appellant, Maria Chin Abdullah, who was the chairperson of a non-governmental organisation and a former Member of Parliament, challenged the decision made by the Ketua Pengarah Imigresen and Menteri Dalam Negeri, the respondents. The appellant was subjected to a travel ban for three years due to her alleged criticism of the government in public forums. She only became aware of the ban when she attempted to leave the country and subsequently applied for judicial review.
The central issues in this case were: firstly, whether section 3(2) of the Immigration Act 1959/63 (MY) conferred upon the Director General of Immigration an unfettered discretion to impose a travel ban on a citizen, particularly where the citizen had publicly criticised the government; and secondly, whether sections 59 and 59A of the Act were valid and constitutional, given that they potentially contravened the principles of natural justice and the right to be heard.
The Federal Court held that, although the Director General possessed statutory powers under the Immigration Act, the exercise of that power in this case was unlawful. The Court unanimously allowed Maria Chin Abdullah’s appeal. However, the judges were divided in their reasoning: Abdul Sebli FCJ found the exercise of power to be unreasonable, Mary Lim FCJ considered it illegal, while the dissenting judgment led by Tengku Maimun CJ concluded that the decision violated Article 5(1) of the Federal Constitution (MY), which includes the right to travel abroad when interpreted purposively and in light of recent authorities (Tay, 2024).
Regarding the validity of sections 59 and 59A, the Court, by a majority of 4:3, held that both provisions were constitutional. Abdul Rahman Sebli FCJ rejected the application of the basic structure doctrine, noting that previous cases that upheld it, such as Semenyih Jaya, Indira Gandhi, and Alma Nudo, were obiter and that the doctrine was of Indian origin. He held that the enactment of section 59A was sanctioned by Article 121(1) and thus a valid ouster clause, which could not be struck down under Article 4(1) of the Constitution. Mary Lim FCJ, while agreeing that section 59A limits judicial review, emphasised that it was not absolute: courts retained supervisory jurisdiction to ensure legality and compliance with procedural safeguards, and decisions based on invalid circulars or actions beyond statutory authority remained reviewable. The dissenting judgment led by Tengku Maimun CJ and Nallini Pathmanathan FCJ maintained that the basic structure doctrine is applicable in Malaysia, and that sections 59 and 59A, by excluding judicial review and procedural fairness, were unconstitutional for violating Articles 4(1), 5(1), and 8(1).
This judgment has attracted significant academic criticism, particularly for rejecting the basic structure doctrine, adopting an overly literal approach to Article 121(1), and upholding ouster clauses that could weaken constitutional safeguards. Critics argue that the decision risks undermining judicial independence and leaves fundamental liberties exposed to executive overreach (Tan & Shahizam, 2021).
In summary, section 59A limits judicial review to procedural compliance, making substantive review effectively non-justiciable. While the Director General’s decision in this case was quashed due to procedural irregularities, the ruling that sections 59 and 59A are constitutional restricts the judiciary’s ability to review the merits of future decisions. This significantly diminishes the practical effect of natural justice, particularly the right to a fair hearing (Naban et al., 2025).
Prior to this case, Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat (2017), Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak (2018), and Alma Nudo Atenza v Public Prosecutor (2019) had upheld the basic structure doctrine as part of Malaysian law, allowing courts to address the limitations imposed by ouster clauses. However, the Federal Court in Maria Chin Abdullah (4:3) overruled this precedent, rendering the doctrine inapplicable.
Although the basic structure doctrine was later reaffirmed in Dhinesh a/l Tanaphll v Lembaga Pencegah Jenayah (2022), the Maria Chin Abdullah case demonstrates the fragility of the doctrine, as its validity can be reversed depending on the composition of the Federal Court panel. Former Chief Justice Tun Abdul Hamid Mohammad (2025) criticised this selective application, noting that panel selection can influence outcomes, as was evident in Dhinesh.
Moreover, the powers under sections 59 and 59A continue to be abused, with travel restrictions imposed on individuals critical of the government, such as cartoonist Zunar, activists Hishamuddin Rais, Tony Pua, and Rafizi Ramli (Amnesty International, 2017), and more recently on Fahmi Reza (Hoong, 2025). The Immigration Department has often failed to provide prior notice to affected individuals, further increasing the risk of abuse (Anbalagan, 2015).
Cases prior to Maria Chin Abdullah, such as Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan (2002) and Ambiga a/p Sreenevasan v Director of Immigration, Sabah (2018), similarly held that section 59A precluded judicial review, consistent with Maria Chin Abdullah. Even after Dhinesh, Ahmad Kamal J in Md Shahidul Islam v Ketua Pengarah Jabatan Imigresen Malaysia (2024) reaffirmed that section 59A permits review only of procedural compliance, not the merits. Encouragingly, in Khoh Keow Bok & Ors v Ketua Pengarah Kastam (2025), the Court upheld the basic structure doctrine and declared section 59A unconstitutional.
In conclusion, while the decision of the Director General was quashed in this case, the presence of the ouster clause limits the effectiveness of natural justice. The judgment highlights the tension between statutory ouster clauses and the judiciary’s role in safeguarding constitutional rights, leaving substantive human rights protections vulnerable to executive discretion.
Reference List
Alma Nudo Atenza v Public Prosecutor and another appeal [2019] 4 MLJ 1
Ambiga a/p Sreenevasan v Director of Immigration, Sabah, Noor Alam Khan bin A Wahid Khan & Ors [2018] 1 MLJ 633
Amnesty International. (2017, July 10). Malaysia: Open-Ended Travel Bans Violate the Rights of Human Rights Defenders and Political Figures. Retrieved February 1, 2026, from https://www.amnesty.org/fr/wp-content/uploads/2021/05/ASA2866972017ENGLISH.pdf
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Dhinesh a/l Tanaphil v. Lembaga Pencegah Jenayah & Ors [2022] 3 MLJ 356
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Hoong, L. W. (2025, June 8). Malaysian political cartoonist’s travel ban stirs anger, but police call it a mistake. The Straits Times. https://www.straitstimes.com/asia/se-asia/malaysian-political-cartoonists-travel-ban-stirs-anger-but-police-call-it-a-mistake
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Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] 1 MLJ 545
Khoh Keow Bok & Ors v Ketua Pengarah Kastam, Jabatan Kastam Diraja Malaysia & Anor [2025] 10 MLJ 348
Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021] 1 MLJ 750
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Naban, D. P., Kumar, S. S., & Azhar, A. (2025, April 23). The High Court quashes travel ban imposed by customs. RDS Law Partners. . Retrieved February 1, 2026, from https://www.rdslawpartners.com/post/the-high-court-quashes-travel-ban-imposed-by-customs
Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan [2002] 3 MLJ 72
Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561
Syed Iskandar bin Syed Jaafar v Kerajaan Malaysia & Ors [2024] 11 MLJ 215
Tan, K. L., & Shahizam, S. (2021). O Bitter Pill to Swallow: Separating Ratio from Dicta in Maria Chin Abdullah. MLJ, 5, ccxcix-cccxv.
Tay, W. T. V. (2024). Maria Chin Abdullah And The Basic Structure Doctrine In Malaysian Jurisprudence. CLJ, 4, i–x.
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