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Parsing Privative Clauses: Rights, Security and Judicial

Review in Malaysia

Article · February 2010

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Jaclyn Ling-Chien Neo

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Parsing privative clauses: rights,
security and judicial
review in Malaysia

By

Jaclyn Ling-Chien Neo

Reprinted from Public Law

Issue 1, 2010

Sweet & Maxwell

100 Avenue Road
Swiss Cottage
London
NW3 3PF
(Law Publishers)
 Analysis 25

Parsing privative clauses: rights, security and judicial

review in Malaysia

Human rights; Judicial review; Legislative intention; Malaysia; National

security; Rule of law

The prioritisation of security over individual liberty has been part of Malaysia’s
constitutional design. While art.5(1) of the Federal Constitution of Malaysia
(the ‘‘Federal Constitution’’) guarantees that ‘‘[n]o person shall be deprived
of his life or personal liberty save in accordance with law’’, a separate art.149
authorises Parliament to derogate from this in order to preserve Malaysia’s
internal security. Pursuant to this, the Malaysian Parliament enacted the
Internal Security Act 1960 (ISA),1 which regularised the British colonials’
1948 Emergency Regulations that had served to counter the communist
insurgency at that time.2 The ISA is detrimental to individual liberties since it
empowers the executive to preventively detain persons deemed as threats to
national security for indefinite periods of time.3
Until recently, the executive’s broad discretionary powers are reinforced by a
judicial attitude which was deferential to executive wisdom on national security
matters and justified by the valorisation of security concerns. This manifests
itself in the adoption of a subjective standard of review since the 1969 decision
in Karam Singh v Menteri Hal Ehwal Dalam Negeri (Minister of Home Affairs)4
where the Malaysian courts followed the now abandoned majority approach in
the House of Lords’ decision in Liversidge v Anderson.5 Under this subjective test
of review, detentions under s.8 of the ISA are considered lawful as long as the
detaining authority was personally or subjectively satisfied that it was necessary
to prevent the person from acting in a manner prejudicial to Malaysia’s security.
Security matters are deemed to be the responsibility of the executive,6 who
are thus regarded as the ‘‘judges in the matter of preventive detentions relating
to the security of the Federation’’.7 This not only means that security concerns
take precedence over the fundamental liberties of the individual, but also that
there are no effective legal checks on executive discretion, which is contrary
to the rule of law. When the Malaysian Parliament amended the ISA in 1989
to insert a privative clause (s.8B(1)) restricting judicial review to ‘‘any question

1 Act 82.
2 The ISA was promulgated to embody reg.17 of the Emergency Regulations, which were repealed.
3 ISA s.8(1).
4
Karam Singh v Menteri Hal Ehwal Dalam Negeri (Minister of Home Affairs) [1969] 2 M.L.J. 129.
5 Liversidge v Anderson [1942] A.C. 206 HL at 253.
6 See, e.g. Azmi L.P.’s reasoning (affirming Lord Macmillan’s judgment in Liversidge v Anderson [1942]

A.C. 206 at 253): ‘‘how could a court of law deal with the question whether there was a reasonable
cause to believe that it was necessary to exercise control over the person proposed to be detained,
which is a matter of opinion and policy, not of fault? A decision on this question can manifestly be
taken only by one who has both knowledge and responsibility which no court can share.’’
7 Theresa Lim Chin Chin v Inspector General of Police [1988] 1 M.L.J. 293.

[2010] P.L. January  2010 Thomson Reuters (Legal) Limited and Contributors
26 Public Law

on compliance with any procedural requirement’’, executive action appeared

to be further immunised from legal controls.
The 2008 decision of Raja Petra bin Raja Kamarudin v Menteri Hal Ehwal
Dalam Negeri (‘‘RPK’’)8 however signifies a shift in judicial attitude and a
reversal of the prioritisation of security over rights. Rather than deferring to
the literal intention of Parliament to restrict judicial review, which earlier
courts had, the High Court in RPK chose instead to restrict the section
only to acts or decisions which comply with the ISA. It did so by relying
on the ambiguous drafting of the section which referred to ‘‘any act done
or decision. . .in accordance with this Act’’. Thus, the High Court subtly
rejected the subjective standard of review and adopted an objective, more
robust standard of review over ISA detentions, which gives more protection
to the detainee’s liberties.
This article examines the particular constructions of s.8B(1) and the reliance
on parliamentary intent as the basis for judicial review in Malaysia. It argues
that the contested constructions of s.8B(1) illustrates the particular difficulties
with the theory of judicial review based on parliamentary intent. It further
contends that constitutional principles such as the rule of law and the protection
of fundamental liberties are better bases for developing judicial review in the
context of a democratising Malaysia.

Facts and decision

The applicant in RPK, Raja Petra Kamaruddin, was a well-known government

critic and acknowledged supporter of the opposition Reformasi movement.
The Government detained him in September 2008 under the ISA for
publishing three articles on his political blog which allegedly threatened
Malaysia’s national security. The threats appeared to be two-fold. First, the
articles ‘‘[criticised] and insulted Muslims, the purity of Islam and the personality
of the Prophet Muhammad S.A.W.’’9 Secondly, the articles criticised the
‘‘national leaders’’ and ‘‘were defamatory and false with the intention of
undermining confidence and inciting public hatred against the Government
which could affect public order and prejudice national security.’’10 The
applicant applied for habeas corpus claiming that his detention was unlawful.
On November 7, 2008, the High Court of Shah Alam issued an
unprecedented decision ordering Raja Petra to be released. First, the Court
held that it was the express intention of Parliament to exclude judicial review
only over non-jurisdictional errors. This is because the privative clause referred
to acts done or decisions made ‘‘in accordance with [the] Act’’. A contrary
interpretation would make the words merely ‘‘excess verbiage’’ and leave the
Minster’s decision completely unfettered and arbitrary. This, the court held, is
not justified by the express provisions of s.8B.

8 Raja Petra bin Raja Kamarudin v Menteri Hal Ehwal Dalam Negeri November 7, 2008, Permohonan

Jenayah MTJ1: 44-217-2008, Shah Alam High Court (‘‘RPK case’’).

9 RPK at 2.
10 RPK at 2.

[2010] P.L. January  2010 Thomson Reuters (Legal) Limited and Contributors
 Analysis 27

Having opened the door to review, the High Court went on to hold that
the Minister’s decision to detain Raja Petra was in excess of jurisdiction for
two reasons. First, the Minister failed to establish the requisite jurisdictional
or precedent facts to the court’s satisfaction. This means that the Minister
was not even entitled to enter into the enquiry as to whether to grant the
detention order. These jurisdictional or precedent facts were extracted from
the recitals to the preamble, which declared, inter alia, that the ISA was
enacted for the specific purpose of combating ‘‘a substantial body of persons
intent on overthrowing the lawful government of Malaysia by unlawful and
unconstitutional means’’.
These form ‘‘threshold considerations’’ or ‘‘preliminaries to jurisdiction’’
which are condition precedents to the exercise of the Minister’s powers under
s.8(1) of the ISA. The Minister must prove these precedent facts to the
satisfaction of the court.11 On the facts, the Minister was not even entitled
to enter into the enquiry as to whether it was necessary to detain Raja Petra
to prevent him from acting prejudicially to the national security because he
had not proved that there existed a substantial body of persons intent on
overthrowing the Government unlawfully.12 Neither did the Minister prove
that Raja Petra was a member of such a body of persons.13 As such, the
detention was unlawful.
Secondly, even if the Minister was entitled to enter into the enquiry, he
had exceeded his jurisdiction during the course of his enquiry. He exercised
his powers for purposes outside the scope of the statute and also misconstrued
the scope of his powers. The High Court held that the grounds of
detention—insulting Islam and defaming national leaders—did not amount
to threats to national security, and therefore did not fall within the purposes
of the ISA. Furthermore, the Minister acted in excess of jurisdiction because
he had effectively arrogated to himself powers to determine what constitutes
insulting Islam, which he did not have powers to do. The Federal Constitution
provides that Islamic matters fall under the purview of the individual states.
The Minister, being a member of the Federal Government, does not have
the power or expertise to judge if Raja Petra had insulted Islam. This was a
matter ‘‘within the exclusive domain’’ of the religious authorities of the state.
The detention was therefore unlawful.

Parliamentary intention as the basis for judicial review

There are divergent judicial approaches to s.8B(1) which reads:

‘‘There shall be no judicial review in any court of, and no court shall
have or exercise any jurisdiction in respect of, any act done or decision
made by the Yang di-Pertuan Agong or the Minister in the exercise of
their discretionary power in accordance with this Act, save in regard to

11
Zamir v Secretary of State for the Home Department [1980] A.C. 930 HL.
12 RPK at 11.
13 RPK at 11.

[2010] P.L. January  2010 Thomson Reuters (Legal) Limited and Contributors
28 Public Law

any question on compliance with any procedural requirement in this Act

governing such act or decision.’’
Prior to RPK, the judicial approach to s.8B(1) was more literal; in Kerajaan
Malaysia v Nasharuddin Nasir,14 for example, the court accepted that s.8B(1)
manifests clear and explicit parliamentary intention to limit judicial review.15
The High Court in RPK read s.8B(1) more restrictively. Although having
widely divergent consequences, both approaches purport to uphold express
parliamentary intent. The RPK approach concentrates on the words ‘‘in
accordance with this Act’’ while the previous approach disregard those words,
focusing instead on ‘‘no judicial review’’. By more robustly asserting judicial
control over executive action, the RPK approach affords more protection to
detainees and more strongly upholds rule of law values. Executive discretion is
neither absolute nor unfettered. This approach may be described as an ‘‘express
principled’’ approach, in contrast to the earlier approach which may be called
an ‘‘express literal’’ approach.
The ‘‘express principled’’ approach demands executive acts and decisions
to comply with the substantive and procedural requirements of the ISA. This
approach presumes that Parliament intended to limit executive discretion by
relying on the words ‘‘in accordance with this Act’’. The assumption is that
the specific choice of phrase is determinative; had the statute been phrased
differently, for example in the line of the words such as ‘‘pursuant to this Act’’
or ‘‘under this Act’’, s.8B(1) may be interpreted as merely specifying the basis
for the exercise of powers, and not as a constraint.
There is however one textual problem; this approach appears to render
redundant the savings part of the section, which retains judicial review over
questions of procedural compliance. Presumably, questions on procedural
compliance would fall within the broader scope of review as to whether
acts done or decisions made are in accordance with the ISA. However, one
possible counter-argument is that s.8B(1) makes it clear that non-compliance
with procedural requirements would render a detention unlawful. It was
necessary for Parliament to specifically reserve judicial review over these
questions because earlier cases following the 1969 case of Karam Singh v
Menteri Hal Ehwal Dalam Negeri (Minister of Home Affairs), Malaysia took
the position that non-compliance with procedural requirements would not
invalidate a detention order.16 In contrast, the Indian courts have insisted
on strict observance of procedural norms so as to ensure the widest possible
protection of individual liberty.17 In this sense, s.8B(1) expands, rather than
restricts, the scope of review over ISA detentions. Parliamentary intent,
however, is at best equivocal on this specific issue.
Clearly, the ‘‘express principled’’ approach is preferable because it gives the
most protection to individual liberties and is more consistent with the rule of

14 Kerajaan Malaysia v Nasharuddin Nasir (2004) 1 C.L.J. 81.

15 See also Lee Kew Sang v Timbalan Menteri Dalam Negeri (2005) 3 C.L.J. 914; Abdul Razak bin
Baharuddin v Ketua Polis Negara [2006] 1 M.L.J. 320.
16 Karam Singh [1969] 2 M.L.J. 129.
17 See, e.g. Maneka Gandhi v Union of India [1978] 2 S.C.J. 313.

[2010] P.L. January  2010 Thomson Reuters (Legal) Limited and Contributors
 Analysis 29

law. Arguably however, one might adopt the ‘‘express literal’’ interpretation
as being more consistent with parliamentary intention as evidenced by the
legislative history. When the Malaysian Parliament inserted s.8B(1) in 1989,
it was in fact to counter perceived judicial encroachment into the executive’s
exclusive domain over national security. It was evident from cases in the
late 1980s18 that the Malaysian judiciary was ready to follow their English
counterparts in putting to rest the ‘‘ghost of Liversidge’’ by jettisoning the
subjective standard of review for an objective limited review approach.19 This
took the form of passive resistance such as in Re Tan Sri Raja Khalid bin Raja
Harun20 and outright rejection such as in Yit Hon Kit v Minister of Home Affairs,
Malaysia.21 In Re Tan Sri Raja Khalid bin Raja Harun, the Supreme Court
purported to affirm the subjective test but in fact applied an objective standard
of review and ordered the detainee to be released on the basis that the grounds
for detention did not fall within the scope of the ISA.22 In Yit Hon Kit, the
Malaysian Supreme Court openly advocated that the courts overturn Karam
Singh, which introduced the Liversidge approach to ISA detentions.23
The two approaches reflect the artificiality of parliamentary intent as the basis
for judicial review. This is an inherent problem with the conventional English
theory of judicial review which seeks to ground review upon parliamentary
intention. This ‘ultra vires’ theory assumes that courts are merely applying the
specific intent of legislature when it exercises its review jurisdiction to police
the boundaries stipulated by parliament.24 As the contested interpretations
of s.8B(1) show, specific parliamentary intent is not self-evident from the
drafting. Moreover, the drafting may be so ambiguous that it may support
an interpretation opposite to Parliament’s intention. As a result, cases such
as Anisminic Ltd v Foreign Compensations Commission25 have to impute to
Parliament a general intention to conform to the rule of law so as to justify
restricting the scope of the privative clause only to ‘‘real’’, as opposed to
‘‘purported’’, determinations. This presupposes a legislative commitment to
a legal tradition, which may or may not exist. It is problematic when such
presumptions are ‘‘upheld’’ by reading words into the statute or even in the face
of contradicting language. Even where the language of a statutory provision
is ambiguous, the RPK decision and its predecessors show that parliamentary

18 Minister for Home Affairs, Malaysia v Jamaluddin bin Othman [1989] 1 M.L.J. 418; Re Tan Sri Raja

Khalid bin Raja Harun [1988] 1 M.L.J. 182; Karpal Singh s/o Ram Singh v Menteri Hal Ehwal Dalam
Negeri Malaysia [1988] 1 M.L.J. 468.
19 R. v Inland Revenue Commissioners Ex p. Rossminster Ltd [1980] A.C. 952 HL at 1011; Nakkuda Ali

v MF de S Jayaratne [1951] A.C. 66 PC at 77. Council of Civil Service Unions v Minister for the Civil Service
(the GCHQ case) [1985] A.C. 374 HL.
20
Re Tan Sri Raja Khalid bin Raja Harun [1988] 1 M.L.J. 182.
21 Yit Hon Kit v Minister of Home Affairs, Malaysia [1988] 2 M.L.J. 638. Yit Hon Kit involves

the preventive detention of persons under the Emergency (Public Order and Prevention of Crime)
Ordinance 1969.
22 Re Tan Sri Raja Khalid [1988] 1 M.L.J. 182 at 188.
23 Yit Hon Kit [1988] 2 M.L.J. 638. Yit Hon Kit involves the preventive detention of persons under

the Emergency (Public Order and Prevention of Crime) Ordinance 1969.

24 Paul Craig, ‘‘Competing Models of Judicial Review’’ (1999) P.L. 428, 428–429.
25 Anisminic Ltd v Foreign Compensation Commission [1969] 2 A.C. 147 HL.

[2010] P.L. January  2010 Thomson Reuters (Legal) Limited and Contributors
30 Public Law

intention per se cannot fully account for a court’s decision to choose one
interpretation over another. Much depends upon the attitude of the courts in
judicial interpretation.

Constitutional basis for judicial review

The contested interpretations of s.8B(1) illustrate the difficulty of basing

judicial review upon parliamentary intent. Privative clauses such as s.8B(1)
have always been problematic for courts seeking to adhere to parliamentary
intent since it contravenes the rule of law, which includes access to justice.
It is here suggested that Malaysian judges do not have to encounter the same
quandary as English judges since the Malaysian constitutional order is not
founded upon the principle of parliamentary sovereignty. Instead, in Malaysia,
it is the Federal Constitution, and not Parliament, which is supreme. The
doctrine of constitutional supremacy has far more wide-ranging dimensions in
limiting governmental power. Judicial power extends to the judicial control
of the legislative branch of government.26 The Constitution embodies certain
foundational principles such as the rule of law27 and the protection of human
rights which must form the normative basis for judicial review. The need to
protect human rights is manifested in the Bill of Rights contained in Pt II of
the Federal Constitution.
Like the common law theory of judicial review developed in England, basing
judicial review upon normative constitutional principles would substantiate the
judicial presumption that Parliament intends to or ought to abide by the rule
of law and the protection of human rights.28 In practical terms, this means that
where a statutory provision is capable of two or more possible interpretations,
the constitutional basis for judicial review would justify the judicial preference
for the interpretation that most accords with the protection of human rights
and upholds the rule of law. For s.8(B)(1), this would be the ‘express principled’
interpretation.
Firstly, this interpretation gives the most protection to the protection of
human rights, especially since it implicates the right of life under art.5(1)
and seeks to derogate from the right to habeas corpus under art.5(2) of
the Federal Constitution. As a statutory provision seeking to derogate from
such fundamental rights, a strictly restrictive interpretation is required.29 This
accords with accepted rules of constitutional interpretation in Malaysia which
advocates avoidance of what Lord Wilberforce termed ‘‘the austerity of
tabulated legalism’’ so as to ensure that individuals receive the ‘‘full measure’’
of fundamental liberties.30 As such, not only must any deprivation of rights
be stated in ‘‘clear and unequivocal language’’,31 but also that any such

26 Lord Diplock, ‘‘Judicial Control of Government’’ (1979) Malayan Law Journal cxl, cxlvi.
27 The rule of law is an accepted constitutional principle in Malaysia. Kekatong Sdn Bhd v Danaharta
Urus Sdn Bhd [2003] 3 M.L.J. 1.
28 The Rt Hon Lord Woolf et al, De Smith’s Judicial Review, 6th edn (Sweet & Maxwell, 2007), p.10.
29
See Dewan Undangan Negeri Kelantan v Nordin bin Salleh [1992] 1 M.L.J. 697.
30 See Minister of Home Affairs (Bermuda) v Fisher [1980] A.C. 319 PC at 329.
31 Lee Mau Seng v Minister for Home Affairs, Singapore [1969–1971] S.L.R. 508 at 515–516.

[2010] P.L. January  2010 Thomson Reuters (Legal) Limited and Contributors
 Analysis 31

deprivation must be given a narrow and restricted interpretation.32 Article

149 merely validates legislation which derogates from certain constitutional
rights, including art.5.33 It does not preclude the court from adopting the
interpretation which least intrudes upon those rights. Parliamentary intention
may not assist the court in deciding which interpretation to select, but
constitutional principle prioritising the protection of human rights will give
the inevitable conclusion that the ‘‘express principled’’ interpretation should
be adopted.
Secondly, the ‘‘express principled’’ approach conforms to the rule of law
since it prefers the interpretation that least intrudes upon the scope of judicial
review. The rule of law requires limits upon power and judicial review is the
method by which to ensure that such limits are adhered to.34 The ‘‘express
literal’’ approach would effectively allow the executive unfettered discretion,
which is contrary to the rule of law. The ‘‘rule of law demands that the
courts should be able to examine the exercise of discretionary powers’’.35
Furthermore, the ‘‘express principled’’ approach prefers the interpretation that
continues to ensure individual access to justice. Access to justice or to the
courts has been recognised in Malaysia as an integral aspect of the rule of law.36
Some concession can be made to executive responsibility for and knowledge
on national security matters by limiting the grounds of review to questions of
legality, i.e. whether the decision to detain complied with all legal requirements
under the statute, as opposed to questions of rationality or natural justice.
The main question would therefore be whether the decision was in fact based
on grounds of national security.37 The High Court in RPK introduced a
further legal requirement in the form of a precedent fact as to whether the
detainee is a member of a substantial body of persons ‘‘intent on overthrowing
the lawful government of Malaysia by unlawful and unconstitutional means’’.
This is the first time that a Malaysian court interpreted the recitals in the
preamble to the ISA as threshold requirements conditioning the executive’s
exercise of powers under the Act. This must be right; courts should imply
procedural and substantive safeguards in favour of the person who has lost his
freedom.38

32 See Ong Ah Chuan v PP [1981] 1 M.L.J. 64.

33
Other provisions include arts 9, 10 and 13. Article 9 prohibits banishment or exclusion of citizens
from the Federation of Malaysia, art.10 guarantees freedom of speech and expression, assembly and
association, whereas art.13 protects property rights.
34 See generally Joseph Raz, ‘‘The Rule of Law and its Virtue’’ (1977) 93 L.Q.R. 195, 200–201;

L. Fuller, The Morality of Law (Yale University Press, 1969), p.39.

35
Chng Suan Tze v Minister of Home Affairs (1988) S.L.R. 132 at 156.
36 Kekatong Sdn Bhd v Danaharta Urus Sdn Bhd [2003] 3 M.L.J. 1.
37 See Chng Suan Tze v Minister of Home Affairs (1988) S.L.R. 132; Council of Civil Service Unions v

Minister for the Civil Service (the GCHQ case) [1985] A.C. 374 HL.
38 M.P. Jain, Administrative Law of Malaysia and Singapore, 3rd edn. (Malayan Law Journal, 1997),

p.634.

[2010] P.L. January  2010 Thomson Reuters (Legal) Limited and Contributors
 32 Public Law

Conclusion

The RPK decision is part of a growing body of judgments39 in Malaysia

where the judiciary is adopting a more rights-based model of public law
which requires a more stringent standard of review over executive power. This
approach demands a closer degree of judicial scrutiny because a compelling
individual interest is at stake. A sea change in judicial attitude is manifested
in various cases where members of the judiciary do not only appear more
willing to robustly review the legality of executive action, but also to impose
resulting civil liabilities where the boundaries of legal executive conduct have
been breached. For example, the Federal Court in Mohamad Ezam bin Mohd
Noor v Ketua Polis Negara40 rejected the subjective test of review over police
detentions under the ISA and imposed an objective, and thereby more robust,
standard of scrutiny over those detentions. This involved overruling its previous
decisions.41 Police detentions are commonly precursors to s.8(1) detentions by
the Minister. In another case, the High Court in Abd Malek bin Hussin v Borhan
bin Hj Daud applied Mohamad Ezam and awarded substantial damages against
police officers whom he found to have unlawfully detained the plaintiff under
the ISA. The damages amounted to RM2.5 million.42 The courts in these
cases gave greater weight to the impact of executive action upon individual
rights, thus rejecting security as a natural trump over fundamental liberties.
The constitutionalisation of administrative law in Malaysia realises the
country’s foundational doctrine of constitutional supremacy, vindicating the
judicial role as the defenders of the liberty of the subject against departmental
aggression43 and reinforcing governmental accountability to the electorate.
The judicial attitude of deference exemplified by Karam Singh can no longer
be justified by the current political condition where survival of a nation is not
at issue. The RPK decision suggests that at least some judges in Malaysia are
settling into their rightful role as a coequal branch of the government with the
duty and role of upholding the rule of law and human rights in the country.

Jaclyn Ling-Chien Neo*

39
See, e.g. Abdul Ghani Haroon v Ketua Polis Negara (No.3) [2001] 2 M.L.J. 689 and Abd Malek bin
Hussin v Borhan bin Hj Daud [2008] 1 M.L.J. 368.
40 Mohamad Ezam bin Mohd Noor v Ketua Polis Negara [2002] 4 M.L.J. 449.
41
Theresa Lim Chin Chin v Inspector General of Police [1988] 1 M.L.J. 293; Re Tan Sri Raja Khalid bin
Raja Harun [1988] 1 M.L.J. 182.
42 See Abd Malek bin Hussin v Borhan bin Hj Daud [2008] 1 M.L.J. 368.
43
Per Raja Azlan Shah, Ag C.J. (Malaya) in Pengarah Tanah dan Galian, Wilayah Persekutuan v Sri
Lempah Enterprise Sdn Bhd [1979] 1 M.L.J. 135.
* Assistant Professor, Faculty of Law, National University of Singapore. JSD Candidate (Yale); LLM
(Yale); LLB (Hons); (National University of Singapore); Advocate & Solicitor (Supreme Court of
Singapore).

[2010] P.L. January  2010 Thomson Reuters (Legal) Limited and Contributors

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