EXAMPLE OF LEADING APPELLANT MOOTING'S SCRIPT

Mooting Script for Leading Appellant

GROUND 1 – REVOCATION OF ENTRY PERMIT IS NOT VALID

Leading Appellant:

May it please Your Lordship, my name is Miss Amera Mohd Yusof and I appear as senior counsel, representing the appellant.  My learned friend Miss Eisah Radiah Ramli will be junior council for the appellant.

Across the way, Miss Nabilah Mohd Azmi will appear as senior counsel for the respondent and Miss Amelia Fazira Ayob will represent the respondent as junior counsel.

The case before us concerns the issue of revocation of the entry permit and also demolishment of the appellant’s building. Do Your Lordship find a brief summary of the facts of the instant case helpful?

If Your Lordship has no further questions on the facts of the case, I shall proceed to my submissions.

My Lord, if I can refer you to the skeleton argument for the appellant, you will see that there are two ground of appeal. I will deal with the first ground and my learned junior will deal with the second.

My Lord, before I go into my 1^st submission of the 1^st ground, I would like to make references to the relevant matter

Based on the previous trial before court, my client, Mr. Ahmad Albab’s permanent resident status had been cancelled through the revocation of entry permit.

1)    OFFICIAL PORTAL OF IMMIGRATION DEPARTMENT OF MALAYSIA

Entry Permit

1. Permanent Residency in Malaysia

Permanent Residency Status in Malaysia is granted to any foreign citizen under the Immigration Act and Regulations 1959/63.

Any foreign citizen who had been granted Permanent Resident Status will be issued an Entry Permit and Identification Card (MyPR).

Applicants  FOR PR, with a minimum Pass Mark of 65 points out of 120 points will be considered for the issue of an Entry Permit.

This revocation of entry permit had been done based on Sec. 9(1)(c) of the Immigration Act 1959/1963, Act 155. This can be referred from the L3 of the authorities’ bundle.

 In this Sec., it is stated that the

“DIRECTOR GENERAL MAY cancel any Permit at any time by writing under his hand, if he is satisfied that the presence in, or entry into, Malaysia of the holder of any Permit is, or would be, prejudicial to public order, public security, public health or morality in Malaysia or any part thereof.”

The part of ‘prejudicial to public order’ was used in explaining on the ground of revocation for the said entry permit.

Here, the respected Judges on the previous court had decided that the decision was on the favour of the Respondent as in the presence of Sec.59A of the Immigration Act,(herein after refer to as the Act) which exclude the court from carrying out any JR proceeding for the decision made on the revocation of such permit.

So today, as the counsel for the Appellant, we would like to challenge on the application of Sec.59A of the Act which act as the ouster clause that preventing the court from carrying out any judicial review upon the decision to revoke my client’s entry permit. So under the first submission, we would like to argue that

SUBMISSION : The ouster clause, Sec. 59A of the Act can’t be used to protect the decision of the minister in revoking my client’s entry permit, which indirectly cancelling his PR status.

“Exclusion of judicial review – Sec. 59A. (1) There shall be no judicial review in any court of any act done or any 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 in regard to any question relating to compliance with any procedural requirement of this Act or the regulations governing that act or decision.”

As we know, Ouster clause is a provision in a statute that will protect the decision made by the party referred under such statute, and this provision will deny the court from having any power to judicial review for such decision produced. But OC is subjected to certain exception. The exception that is relevant to the current situation is that, ouster clause wills not deny such right of the court when there is a flaw in the procedural part in the execution of such decision.

AUTHORITY 1

Here, I would like to refer to the Section 59A(1) of the Act itself which clearly stated that there will be no JR for any decision produced by the minister or Director General except in regard to any QS relating to compliance with any procedural requirement of this Act.

Here, its permissible for the court to have to jurisdiction to judicial review on the presence of non-compliance of such procedural requirement of this Act.

AUTHORITY 2

This authority can be further supported with the case of

SYARIKAT KENDERAAN MELAYU KELANTAN v TRANSPORT WORKERS UNION, reported in 2^nd volume of the Malayan Law Journal for the year of 1995, at page 317.

My Lords, we have been unable to produce the law report itself but may we have your permission to refer to a photocopy of the case. Im am oblige My Lord.

This case can be referred under Section C3 of the Authorities’ bundle.

COURT OF APPEAL & UNANIMOUS DEC. &

JUDGES : Justice of COA Gopal Sri Ram, Justice of COA NH Chan, & Justice of COA VC GEORGE.

FOC : My Lords, do you wish to be re-acquainted with the facts of this case?

YES :

ISSUE : Here, I will direct the issue on the scope relevant to the current case that is whether the exclusion clause of S.33B of the  Ind. Rel. Act can exclude the court jurisdiction to carry out the JR proceeding upon the case.

HELD (JUDGE) : The ouster clause, shall not applied when there is any mistake or flaw happened in deriving to the decision. The act of the Ind. Ct in considering a wrong qs was said to be the act of exceeding it jurisdiction. As it had committed an error of law by exceeding its jurisdiction, the ouster clause would no longer functioning to protect such unjust decision. Thus the JR was allowed.

PRINCIPLE :

PARA F, G, H and I at page 342 of the case, from these para, here I would like to highlight the relevant part of the decision on the current case. The principle laid down is

“A decision-making authority, whether exercising a quasi-judicial function or purely an administrative function, has no jurisdiction to commit an error of law. Henceforth, it is no longer of concern whether the error of law is jurisdictional or not. If a public decision-taker does make such an error, then he exceeds his jurisdiction. So too is jurisdiction exceeded, where resort is had to an unfair procedure.

It may be safely said that an error of law would be disclosed if the decision-maker omits to take into account relevant considerations or misapplies a principle of the general law.

Since the decision maker has no jurisdiction to make an error of law, its decisions will not be immunized from judicial review by an ouster clause however widely drafted.”

[CHE NAB COUNTER ARGUMENT]

BUT AS PER THE CASE OF KEKATONG, FC SAID ON THE PRESENCE OF OUSTER CLAUSE, WE CAN’T HAVE THE JR IN THE PRESENCE OF OC THAT EXCLUDE SUCH PROCEEDINGS. ‘WE HAVE TO RESPECT PARLIAMENT’S INTENTION-OC IS THERE FOR REASON’.

But the case of SYARIKAT KENDERAAN MELAYU KELANTAN v TRANSPORT WORKERS UNION had never been overruled in any ways by that case.  In the presence of two different authorities, a rule of harmonious construction should be used. In the Kekatong case, OC exclude power of Ct to review the dec. on the ground that the parliament intention must be respected. This is not actually contradicting with the principle laid down in the Syarikat Kenderaan Melayu Kelantan, as in this case, Justice COA Gopal Sri Ram clearly stated that OC will always in its functioning mode if there is no error committed in deriving into the decision. But in the case whereby an error had been committed by the authority, OC shall not be used to protect such decision as its only create unjustice upon theparty related. This can be referred to Para. F,G,H and I of the Syarikat Kenderaan Melayu Kelantan, page 342. As for that, the principle laid down in this case is still much relevant.

So as per the case of SYARIKAT KENDERAAN MELAYU KELANTAN, its allowed for the court to have a jurisdiction to judicial reviewed a case which contains flaws in its decision.

Now, My Lords lets me point out to you the flaws that had been acted by the Respondent while revoking the entry permits. Right now I will deal with the application part based on the authority that I had been discussing before.

Here, I would like to refer to Sec.9(1)(c) that highlighted a procedural part of the revocation of the entry permit. It is stated that only Director General by writing under his hand, may make such revocation of the entry permit. So basically there are two important procedural points to be considered that are

                      i.        First, the revocation must only be done by the Director General, and

                    ii.        The revocation must be put in the mode of writing under his hand.

But as can be referred from the current situation, we can see that Mr.Ahmad Albab’s entry permit had been revoked by the Minister at the Ministry of Home Affairs, and not by the Director General. The 1^st element on the procedural part had already unfulfilled. This will make the 2^nd element to be indirectly unfulfilled too.

COUNTER ARGUMENT : CHE NAB

But My Lord, I would like to refer to Section 4 of the Imigration Act to reply to my opponent counsel. Under this section, it is stated that the Minister may direct the Director General to revoke such permits. Sec. 4 of Immigration Act

“Power of Minister to issue directions - The Minister may from time to time give the Director General directions of a general character not inconsistent with this Act as to the exercise of the powers and discretions conferred on the Director General by, and the duties required to be discharged by the Director General under, this Act in relation to all matters which appear to him to affect the immigration policy of Malaysia, and the Director General shall give effect to all such directions.”

Counter by Amera:

My Lord, if you would like to refer to Section 4 of the Act, it is stated that (MAY I READ TO YOU, - read Sec.4 above).

Yes My Lord, I have never disagreed with the fact that Sec.4 allows the minister to act so, that is to direct the Director General to form any act that is permissible under this Statute, in this case to revoke such permit.

But here, the flaw that I would like to point out is on the act of the Minister that is not ‘directing’ the Director General to revoke such permit, but what had been done by the Minister is to revoke the permits by himself. This is a clear violation on the 1^st element of the procedural part stated under Section 9(1)(c) of the Act My Lord.

Besides, the issue for the 2^nd element under this procedural part itself is not fulfilled. If we can referred back to the sec.9(1)(c), it is stated that in order for the Director General to revoke such permits, he must do so via the ‘writing under his hand’.

This procedural part is very crucial as we can see from the intention on why such writing under the director general’s hand is needed. This is because only through such writing, the cause of revocation and the explanation on why such revocation of the permit took place is being justified.

The act of ignorance on the prescribed procedure will only issued the injustice on the revocation of the entry permit which clearly such case did touch the right to life of the holder of such permits, as for the instant case, the right to life of my client, Mr.Ahmad Albab.

On what way his right to life had been infringed? Absolutely through the act of revoking the entry permit not in accordance with the law. As the PR’s holder, now he can no longer conduct his business in the state of Jojo as his entry in Malaysia had been revoked.

Right to life is one of the fundamental right included under Article 5(1) of the FC. This can be referred to the Section of L2 of the authorities’ bundle.

If I may read, “No person shall be deprived of his “LIFE” or personal liberty save in accordance with law”.

The word of  ‘no person’ here include everyone who is within this country, and not specified only to the citizen of the state. Thus, this constitutional right is applicable to my client.

For the purpose of authority on the definition of “Right to  Life” for the current case , I would like to refer to the case of

AUTHORITY :

TAN TEK SENG v SURUHANJAYA PERKHIDMATAN PENDIDIKAN & ANOR, reported in 1st volume of the Malayan Law Journal for the year of 1996, at page 261.

My Lords, we have been unable to produce the law report itself but may we have your permission to refer to a photocopy of the case. I’m am oblige My Lord.

My Lord, if I can direct you to the page of 288, para H and I. Here, it is stated quite precisely the scope on the expression of ‘life’ as per Art.5(1) of the FC.

As can be simplified, “Expression ‘life’ appearing in Art.5(1) DOES NOT REFER TO MERE EXISTENCE. It is incorporates all those facets that are integral part of life itself and those matters which go to form the quality of life.” It includes right to seek & engaged in lawful employment, and to receive those benefits that our society has to offer to its members, and its does includes right to live in a reasonably healthy and pollution free environment.

To apply the principle into the current case, for Mr.Ahmad Albab, the act of gaining income from the business conducted by him in the resort’s business is something that must be regarded as the integral part of the life of his. Under the principle, it is also stated that my client has the right to received those benefits that the society offer to him, as the member of the society, which in this case referring to the benefit of gaining income from the resort business that he had conducted.

Thus, the act of revoking the entry permits, did touch the part of ‘right to life’ on my client, and violation upon it’s procedure must not be tolerated with as it create injustice towards my client.

COA, Majority Dec. : 2:1, Justice COA NH Chan dissenting.

JUSGES : Justice COA Gopal Sri Ram, Justice COA NH Chan, Justice COA Ahmad Fairuz.

FOC:

      i.        The App is the headmaster of a Chinese type of primary school in the state of Johore.

    ii.        He was entrusted with RM3179 which actually belonging to Johore Education Department.

   iii.        This sum of money is actually to be used for the payment of the salary of the school gardener who had not turned up for work for several months.

   iv.        The app was supposedly in his duty to return back the money to the said department, and when he was asked whether he had done so, he firmly said yes, where in fact he had done so a bit later than what he alleged had been done.

     v.        He was done charged with the CBT’s charges as per section 409 of the Penal Code for such action of holding the money without any justification from the department.

   vi.        The department later had wrote to the Resp to only put him in the reduction of the rank that he possessing currently, but in fact, he was later dismissed by the Resp.

  vii.        There are actually 2 mains issues in this case which I reckon both of them is not relevant to the current situation as my intention to use this case as authority is only to quote the definition and scope of ‘right to life’ as laid down by the Justice COA Gopal Sri Ram.

 viii.        My Lord, Do you wish to hear the issues involved together with the judgment although its not relevant to the current case?

ISSUES :

1) Proportionality – It was held that the dismissal is an un-proportionate punishment upon the App, thus reduction in rank was said to be the proportionate punishment. (Para G, pg 302)

2) Right to be heard guarantee under Article 135(2) of FC – can’t be granted to the App as under the para A of the proviso for this Art., the word “proved” had appeared on and not the word of “convicted”. This had make the decision for no right to be heard is to be served upon the APP in the lower court to be valid as he was proved to commit such criminal offence.   (Para F, pg 292)

To recap, As for that My Lord, it is very important for the Authority to adhere the procedure required under this the Immigration Act as this Act had clearly stated that there is power to revoke such permits, and there is procedure to be adhered on such revocation.

The error or law done on part of the Authority related in the revocation of the permit. As there is procedural flaw done on the part of the Authority, it is now open to the court to carry out the judicial review on this case.

My Lord, if you have no inquiry on my first submission, I would like to continue my 2^nd submission

SECOND SUBMISSION : THE GROUND FOR JUDICIAL REVIEW IS : The act of the Minister is ultra vires the discretionary power conferred to him by this Act.

Here, I would like to ask upon the court to review the act of Minister which had ultra vires his jurisdiction as prescribed under the Immigration Act, Sec.4.

If we can see, under Sec.4 of the Act, it is stated that the range power of the Minister is only to direct the Director General in making such revocation and not to decide by him.

The power of minister on making his own decision only on the application of the appeal done by the holder as prescribed under Sec9(8) of the Act, which is not relevant in this case, as my client, Mr. Ahmad Albab had never appeal for such revocation upon the minister.

So the act of Minister to decide on the revocation without having considered the existence of Sec.4 of the Immigration Act must be regarded as a great loss in the justice system of procedural law. This Sec. is very important as it regarded clearly that the power of Minister is only to direct not to act more than that.

As Sec.4 of the Act provide for such discretionary power, (that is from the word the minister MAY…), the violation for this power can be regarded as exceeding his jurisdiction, thus making all his act to be ultra vires the Statute.

REMEDY

As for that, as the counsel for the Appellant, I would like to ask from the court the remedy of certiorari and monetary compensation for this ground. The prohibition under Section 59A, (2) Para (a) must not applied for the remedied that been asked for that are Certiorari & Mandamus, as the JR proceeding is to be allowed for this case.

Here, I would like to ask for

Certiorari – to quash the minister decision on the revocation of the entry permit

Mandamus – directing it to reconsider the matter according to law – remitted the revocation of PR with direction that it considered the Appellant’s entry permit according to law.

Monetary compensation – to compensate the cost incurred by the Appellant in applying to this court and also the cost of losing the income as the result of the revocation of the permit.

DO YOU HAVE ANY FURTHER QS MY LORD?

IF YOU HAVE NO FURTHER QS, MY LORD, MY LEARNED JR COUNSEL WILL NOW DEAL WITH THE SECOND GROUND OF THE APPEAL.

I AM MUCH OBLIDGE. 

DONE BY ;

AMERA MOHD YUSOF
FACULTY OF LAW, UM