MALAYSIA MUST RESPECT RIGHT TO TRAVEL OUTSIDE
THE COUNTRY – NO LAST MINUTE DENIAL OF RIGHT WITHOUT EXPRESSED REASONS, THE RIGHT
TO BE HEARD AND/OR JUDICIAL REVIEW
MADPET(Malaysians
Against Death Penalty and Torture) is disappointed with the Court of Appeal’s
decision, as reported in the media, that suggests that Petaling Jaya
Utara MP Tony Pua has no right to be heard and that the Immigration department
director-general is not required to give any reason for imposing such a ban.(Star, 5/7/2017). The
fact that any Malaysian could at any time be barred from leaving the country,
without knowing why, and without even being accorded the right to challenge the
action of the Immigration Department in court is certainly unacceptable and
most unjust.
RIGHT TO KNOW WHY AND RIGHT TO BE HEARD
‘…Justice Idrus Harun, who delivered the
unanimous decision of the court, said Article 5 of the Federal Constitution on
the right to liberty excluded the right to travel abroad…He said Pua,
under Article 5 and the Immigration Act, had no right to be heard and
the Immigration director-general had no duty to give reason to impose the
travel ban.’ (FMT News, 5/7/2017). The coram of the Court of Appeal was
Mohd Zawawi Salleh, Kamardin Hashim and Idrus.
Section 59 of the Immigration Act 1959/63 states that ‘No person and no member of a class of persons shall be
given an opportunity of being heard before the Minister or the Director
General, or in the case of an East Malaysian State, the State Authority, makes
any order against him in respect of any matter under this Act or any subsidiary
legislation made under this Act.’ It is so wrong for a person, who had expended
monies and effort, to be suddenly barred from travel at the International
Airport. Prior notice of a ‘travel ban’ is definitely more just, and accords
the victim the right and opportunity to challenge the validity of such ban.
The state of
affairs suggests that Malaysians may consider themselves ‘detained’ within
Malaysia for the Director General of Immigration can at any time ‘secretly’
decide that they be not be allowed to travel out of Malaysia. Worse still, the victim
of the travel ban seems to also not have
a right to know the reason why the ban was imposed. The earlier High Court
judgment in the Member of Parliament Tony Pua’s case, stated, amongst others,
‘… The above evidence
also shows that the DGI has given his reasons even though he is not required
to do so under the Immigration Act.’ This goes contrary to norm in the
administration of justice, where even the arresting or investigating authority
is required to explain the reasons for any such arrest or investigations to
persons affected. Rights and liberties should never be denied without giving
reasons to victims.
Without
the right to know the reasons, for the denial of the ability to leave Malaysia (and
possibly also the right to enter the country), any victim would be extremely
prejudiced and subjected to serious injustice.
Without
knowing, he/she could also not correct the possible mistakes, lies or false
facts upon which the DG of Immigration may have wrongly relied on when he decided
on such travel bans. The denial of the opportunity to be heard even before the
DG or the Minister makes it all the more unjust. Section 59 and other sections
that deny such rights must be repealed, and the right to know the reason for
the imposition of restrictions and/or travel bans, and the right to be heard
must be guaranteed in law.
JUDICIAL REVIEW – TO PREVENT ABUSES OF THE
EXECUTIVE – A FUNDAMENTAL RIGHT IN A DEMOCRACY
Judicial review is the power given
to courts and judges to review executive action to determine that it is just
and in accordance to the law. It is a necessary check and balance in any
democracy. It is wrong to have laws that enable arbitrary unchecked exercise of
power by the executive, be it the Prime Minister, Ministers, police, the
Director General of Immigration or any other government department.
Denial of
the Right to Judicial Review of the reasons for the restrictions and/or travel
ban is unjust. Section 59A of the Act states, ‘(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.’ It is the reasons for the imposition of
bans/restrictions that need to be reviewed by court – not simply whether the
procedure was followed.
This exclusion
of the right of the victim to ask the
court to review the reasons for the detention, and in this case, travel bans
imposed on him/her, makes the Immigration Act similar to other draconian
Detention without Trial laws like the Prevention of Crime Act 1959(POCA) and
Prevention of Terrorism Act 2015(POTA). The Immigration Act seems worse, since
there is not even the obligation to inform the person prevented from leaving
the country the reasons for the said ‘ban’.
TRAVEL BANS SHOULD ONLY BE IMPOSED BY
COURTS
It must
not be forgotten that a person is presumed innocent until proven guilty in court.
A person being investigated is merely a suspect, and the fact that one is being
investigated will really not be known to many unless, they have previously been
arrested for suspicion of having committed a crime, or have been called in to
give a statement in connection with an investigation that one may have
committed some crime. Note witnesses are also called in for purpose of
investigation, and here they can never be considered suspects.
Restrictions
of movement out of the country can generally only be imposed after one is
charged of a crime, and is released on bail, where the court may, in
exceptional cases, impose a ‘travel ban’ preventing the accused from leaving Malaysia.
For suspects and potential witnesses, such powers should never be in the hand
of the police, Immigration Department or government, but only the courts. The
law requires that even a suspect arrested, cannot be detained longer than 24
hours without a Magistrate’s remand order. It is absurd that the power to
impose travel bans should rest solely in the hands of the Immigration
Department – and not the courts. Without the possibility of judicial
intervention, the risk of abuse of power is unchecked.
BANS AND RESTRICTIONS – PRIOR NOTICE
In this
case, however, there were no such prior restrictions imposed by the police
and/or the courts. Tony Pua was allegedly suddenly prevented from
leaving the country at the KL International Airport 2 on July 2, 2015.
Individuals subjected to ‘travel bans’ should be notified immediately when they
are being subjected to such restrictions – to not do so, and suddenly stop them
after they had made plans and expended monies, at the airport or exit points is
wrong and unjust. It suggests that the Immigration authority may have had a
wrong motive of causing additional suffering on the victim – prior notification
would have prevented such injustice and personal losses.
Prior notice would also accord
the right of the victim to challenge any such orders, restrictions and bans,
and no reasonable person would have expended monies and energy planning trips
if they knew there was a travel ban. I suspect that Tony Pua was not
compensated for even the monies that he had spend purchasing his flight tickets
and for other expenses already spent for that trip. It may be a good idea that
the Immigration Department at their website, also place lists of persons who
are prevented from traveling out of the country.
JUDGES MUST ACT WITHOUT FEAR TO UPHOLD THE CAUSE OF JUSTICE
In
Malaysia, a Parliamentary Democracy, we have 3 branches of government – the Legislature,
the Executive and the Judiciary is to ensure that any one branch of government,
especially, the executive does not abuse its powers and do injustice. Judicial
Review is the process that allows a person aggrieved by decision of the
Executive to be able to take the matter to the courts, who will then decide
whether what was done was just and right.
Given
Malaysian Parliamentary culture, whereby the ruling party backbenchers, do not seem
to oppose or disagree with the Executive, who is led by the Prime Minister/Menteri
Besar/Chief Minister, who also happens to be the party leader, the role of
Judiciary to be a check and balance is of becomes all the more important. It is
sad that, in the past, Parliament, possibly under the influence of the
Executive, has passed laws that attempt to restrict the powers Judiciary, thus
weakening their ability to be a necessary and effective check and balance.
Thus, it
falls upon Judges in Malaysia to bravely uphold the cause of justice and the
rule of law without fear or favour. Judges in Malaysia risk the possibility of being
transferred or not being promoted, or confirmed when they are still Judicial
Commissioners, but that is a risk that they must all face in the interest of
justice and human rights. Bad laws inconsistent with justice, human rights and
the rule of law should never be allowed to hinder the upholding of justice.
Therefore MADPET,
Calls for the immediate repeal of laws
and/or provisions of law like Section 59 and 59A of the Immigration Act that
attempts to exclude judicial review and the right to be heard;
Calls for the immediate revocation of all
travel bans and/or restrictions imposed by the police, Immigration Department
and/or Ministers, which are not imposed by courts and judges after according
the intended victim the right to be heard.
Call for the Malaysian government, to
immediately compensate Tony Pua and all other victims who had expended monies,
by reason of the failure of prior notification of such travel bans.
Calls on Malaysian judges and the Judiciary
to uphold the cause of justice without fear or favour;
Calls on Malaysia to respect justice and
human rights, and ensure that all branches of government that play an essential
role of check and balance in a democracy are not impeded by law and/or other
actions.
Charles Hector
For and on behalf of MADPET
(Malaysians Against Death Penalty and Torture)
Government can bar anyone from travelling abroad, Court of Appeal rules
Three-man bench also rules that Petaling Jaya Utara
MP Tony Pua has no right to be heard and that the Immigration department
director-general is not required to give any reason for imposing such a
ban.
PUTRAJAYA:
In a decision that is sure to cause concern among human rights
activists, the Court of Appeal today ruled that the right of Malaysian
citizens to travel overseas is at the absolute discretion of the
government.
Justice Idrus Harun, who delivered the unanimous decision of the
court, said Article 5 of the Federal Constitution on the right to
liberty excluded the right to travel abroad.
“The provision on the right to travel overseas is not expressly
embodied in Article 5,” he said in dissmissing the appeal by Petaling
Jaya Utara MP Tony Pua.
A three-man bench chaired by Mohd Zawawi Salleh, Kamardin Hashim and
Idrus heard submissions from lawyers for Pua and the government on April
19.
Idrus said the issuance of passports to citizens to travel abroad was a privilege accorded by the government.
He said the term personal liberty in Article 5 in the Malaysian
constitution had to be construed narrowly and was confined to the
mounting of any challenge against the authorities for unlawful detention
of a person.
Idrus said the court was mindful that it must be circumspect in
interpreting the laws and constitutions of other jurisdictions in
declaring the fundamental rights of citizens.
He said Pua, under Article 5 and the Immigration Act, had no right to
be heard and the Immigration director-general had no duty to give
reason to impose the travel ban.
“The appellant has failed to show any merit in his case and we have
no reason to interfere in the findings of the High Court,” he said.
The bench, however, ordered no cost to be paid to the government as it is a public interest case.
Zawawi said he encouraged Pua to take up the matter to the Federal
Court to determine the constitutional issues in the highest court of the
land.
Pua’s lawyer Gobind Singh Deo said he would file a leave to appeal
application within 30-days as there were serious questions of law that
needed to be raised.
Pua dragged the authorities to court after he was prevented from
leaving the country at the KL International Airport 2 on July 2, 2015.
The DAP national publicity chief was supposed to go to Yogyakarta
that day using his passport, which was valid until April 23, 2020.
He claims the decision was ineffective under the law as it was a
contradiction in terms of his legitimate right to travel abroad using
his valid passport.
The High Court last year, in dismissing Pua’s judicial review, held that the travel ban on him was valid.
Last year, another Court of Appeal had also ruled that former
Malaysian Bar president Ambiga Sreenevasan’s travel ban to Sabah was
legal because Malaysia’s highest court had ruled that the judiciary
could not inquire into why such a decision was made.- FMT News, 5/7/2017
Wednesday, 5 July 2017 | MYT 11:15 AM
Tony Pua's appeal to challenge 2015 travel ban fails
PUTRAJAYA: Petaling Jaya Utara MP Tony Pua (pic) failed in his bid to challenge the Immigration Department director-general's decision to bar him from travelling abroad.
Pua had filed an appeal against the High Court's July 2016 dismissal of his judicial review application challenging the director-general's decision.
He named the director-general and the Government as respondents.
In a unanimous decision Wednesday, Court of Appeal judge Justice Mohd Zawawi Salleh said there was no reason for the panel to interfere with the High Court's decision.
Justice Mohd Zawawi, who sat with Justices Idrus Harun and Kamardin Hashim, dismissed the application with no cost.
In his judicial review application, Pua claimed that he was prevented from leaving the country at KL International Airport 2 on July 2, 2015.
Pua, who is DAP national publicity secretary, said he was supposed to leave for Yogyakarta, Indonesia, using his passport, which was valid until April 23, 2020.
He claimed that the decision was ineffective under the law as it was in contradiction to his legitimate rights to travel abroad using his valid passport.
It was previously reported that the ban had been lifted in October 2016.- Star, 5/7/2017
Pua had filed an appeal against the High Court's July 2016 dismissal of his judicial review application challenging the director-general's decision.
He named the director-general and the Government as respondents.
In a unanimous decision Wednesday, Court of Appeal judge Justice Mohd Zawawi Salleh said there was no reason for the panel to interfere with the High Court's decision.
Justice Mohd Zawawi, who sat with Justices Idrus Harun and Kamardin Hashim, dismissed the application with no cost.
In his judicial review application, Pua claimed that he was prevented from leaving the country at KL International Airport 2 on July 2, 2015.
Pua, who is DAP national publicity secretary, said he was supposed to leave for Yogyakarta, Indonesia, using his passport, which was valid until April 23, 2020.
He claimed that the decision was ineffective under the law as it was in contradiction to his legitimate rights to travel abroad using his valid passport.
It was previously reported that the ban had been lifted in October 2016.- Star, 5/7/2017
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