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Article 2
The Federal Court in 2009 held that the right of Malaysian citizens to travel abroad with a valid passport was not a mere privilege as is widely believed.
This judicial pronouncement was made by a three-man bench led by chief judge of Sabah and Sarawak Tan Sri Richard Malanjum when deliberating a criminal appeal, and now has bearing on the Immigration Department's move to revoke the passports of sex blogger Alvin Tan and activist Ali Abd Jalil.
Datuk Seri Gopal Sri Ram, who delivered the ruling in the case of Lee Kwan Woh v. Public Prosecutor, said the term “personal liberty” in Article 5(1) of the Federal Constitution included other rights such as the right to travel abroad.
The bench, which included Datuk Hashim Yusoff, said this when the court seized the opportunity to interpret Article 5(1).
In interpreting Article 5(1), the court said the concepts of “life” and “personal liberty” meant more than mere animal existence.
"Personal liberty includes other rights such as the right to travel abroad," Sri Ram had said in the landmark ruling.
Lee had been accused of trafficking ganja and the High Court had found him guilty and sentenced him to death.
Lee had complained that his lawyer was not allowed to make submissions at the close of the prosecution's case because the trial judge concluded there was sufficient evidence for Lee to answer the charge.
His appeal to the apex court was on the basis that this action – the failure to let his lawyer give submissions – had violated Article 5(1) which states that no person shall be deprived of "life" or "personal liberty" except in accordance with the law.
The judgement which set Lee free also held that constitutional rights must be read "prismatically" and generously, not literally, and cited the right to travel abroad as an example of personal liberty.
The Federal Court's ruling in Lee's case was cited by lawyers who said the Immigration Department was wrong in revoking the passports of Tan and Ali, who are both seeking political asylum abroad.
Immigration Department director-general Datuk Mustafa Ibrahim (pic, right) had said that this was done because Tan and Ali's actions could not be "tolerated", since they had "insulted" the judiciary and Malay rulers.
Several lawyers have told The Malaysian Insider that the department should immediately cancel the order in deference to the apex court's ruling.
"The department has transgressed an irrevocable right and acted contrary to natural justice," lawyer R. Kengadharan said.
Lawyer S.N. Nair agreed that the director-general had exceeded his authority, while Datuk Ambiga Sreenevasan said the department appeared to have breached Article 9 of the constitution for banishing citizens following the revocation of the travel document while they were abroad.
The bench in Lee's case had also upheld a passing remark by the late High Court judge Gunn Chit Tuan in the case of Loh Wai Kong v. Government of Malaysia in 1978.
Loh had sued the government for refusing to issue him a passport on the grounds that he was involved in a criminal case and that the issuance of a passport was at the discretion of the king.
The late justice Gunn held that the phrase "personal liberty" included the right to leave the country, and that the refusal to issue a passport constituted an infringement of the right to personal liberty.
Gunn in the end ruled in favour of the government, but despite this the public prosecutor still appealed to the Federal Court because of the judge's observation on the right to travel.
The Federal Court then ruled that no such right existed, but Sri Ram said the court in that case (in 1979) lacked jurisdiction to hear the appeal because the matter was not on the merits of the case.
He said the law as it stood today was that a litigant who has succeeded at the first instance had no right of appeal against a decision given wholly in his or her favour.
"Yet it entertained the appeal and purported to allow it when the final order of the High Court was in the appellant’s (government’s) favour. Hence, the views expressed in Loh Wai Kong are worthless as precedent," he said.
Loh was a permanent resident of Australia and had returned home in 1975 but was charged with a criminal offence. He obtained bail on condition that he surrender his passport.
In 1977, his passport expired and he applied for a new travel document, citing the need to return to Australia otherwise his resident visa there would expire.
The government refused his application, citing his criminal case and the king's discretion in issuing passports.
Loh then filed a suit and asked the High Court to compel the government to issue him a passport.
In contrast to the lawyers' positions, Home Minister Datuk Seri Ahmad Zahid Hamidi said that the Immigration Department had the power to cancel Tan's passport as the document was not an individual’s property.
Tan is currently in Los Angeles, California, while Ali is in Sweden where he has been seeking political asylum since October.
Ali faces three sedition charges for allegedly insulting the Johor royal family and the sultan of Selangor in his Facebook postings. – December 9, 2014.
Reflective Journal
Human rights in Malaysia is controversial as there have been numerous allegations of human rights abuses in the country. Human rights groups and foreign governments are generally critical of the Malaysian government and the Royal Malaysian Police. Preventive detention laws such as the Internal Security Act and the Emergency (Public Order and Prevention of Crime) Ordinance 1969 allow for detention without trial or charge and as such are a source of concern for human rights organisations like SUARAM
Based on the articles of cases about Freedom of Movement that I had read I found out a case which is related to it in Malaysia, LohWai Kong v. Government of Malaysia(1979) 2 MLJ 33. This casewas heard in the Federal Court of Malaysia. LohWai Kong sought a ruling from the courts that Malaysian citizens were entitled to travel overseas as a fundamental right under Article 5 of the Constitution. The Federal Court ruled that no such right existed.
It all started out when Loh was a permanent resident of Australia. He returned to Malaysia in April 1975, and was charged with a criminal offense in the High Court at Ipoh on 2 August 1976. Loh obtained bail on condition that he surrender his passport. On 2 March 1977, his passport expired, and Loh had it returned. He later applied for a new passport, citing the need to return to Australia by 1978, or his resident visa there would expire. The authorities rejected the application, saying that he was involved in a criminal case and that the issuance of a passport was at the discretion of the Yang di-PertuanAgong (King). Loh then filed suit in the High Court at Penang, asking the court to compel the government to issue him a passport, on the grounds that the right to travel abroad is a fundamental liberty protected by the Constitution.
The High Court rejected Loh's application, but made a number of statements in its ruling which the government disagreed with. In particular, the trial judge held that the phrase "personal liberty" in Article 5 of the Constitution included the right to leave the country, and that the refusal to issue a passport constituted an infringement of the right to personal liberty. The government thus appealed to the Federal Court for clarification.
The right is enshrined in Article 12 of the International Covenant on Civil and Political Rights. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.Everyone shall be free to leave any country, including his own.The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.No one shall be arbitrarily deprived of the right to enter his own country.
And to be more specific, Article 5 which was held by the trail judge is contained in “The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families”
In Article 5, it states that for the purposes of the present Convention, migrant workers and members of their families:(a) Are considered as documented or in a regular situation if they are authorized to enter, to stay and to engage in a remunerated activity in the State of employment pursuant to the law of that State and to international agreements to which that State is a party;
(b) Are considered as non-documented or in an irregular situation if they do not comply with the conditions provided for in subparagraph (a) of the present article.
In the Federal Court, Loh's lawyer said that although Loh did not have an absolute right to a passport, he did have a qualified right on condition of good character. The government responded that no such right, absolute or qualified, existed.
The judgment penned by Lord PresidentTunMohamed Suffian Mohamed Hashim held that the Constitution is silent as to the right to travel overseas, although it refers to the right to travel and reside within the country. Suffian noted the Indian case of Satwant Singh Sawhney v D Ramarathnam, where the Indian courts held that Article 21 of the Constitution of India — roughly corresponding with the Malaysian Article 5 — does include the right to travel abroad
In light of the above discussion, it appears that generally the right to freedom of movements had to meet certain conditions therefore being effective when it is being used to fight a case. However, for Loh he has a criminal charge pending against him and the Government has the rights to stop a person from the leaving the country if they have pending criminal charges against him or her.