Overseas travel ban wrong in this day and age, say lawyers

Lawyer Mohamed Haniff Khatri Abdulla says citizens who pay a fee to obtain passports have a legitimate expectation to travel unless they are security threats, declared bankrupt or involved in tax evasion.

PETALING JAYA: The immigration department director-general’s decision to stop Petaling Jaya Utara MP Tony Pua from leaving Malaysia without giving any reason must be opened to the court’s examination, lawyers said.

They added that the Court of Appeal’s decision that the right to travel was a privilege accorded by the government to citizens holding valid travel documents was inappropriate in “this day and age”.

They also took issue with the literal interpretation of the phrase “that no person shall be deprived of his life or personal liberty”, saying it was absurd to read it as meaning that a challenge could only be mounted for unlawful arrest and detention.

Lawyer Ranjit Singh said the ruling sent a clear but wrong message that Malaysians were at the mercy of the state when it came to travelling abroad.

“As a Malaysian, my personal freedom includes the right to travel. It is not the government that decides whether I can leave the country,” he said.

He said the world had become a “global village”, and citizens left their countries in pursuit of better income, to acquire knowledge and to meet friends and relatives elsewhere.

Ranjit was responding to the judgment delivered by justice Idrus Harun on Wednesday that the government had absolute discretion to decide if Malaysian citizens had the right to travel overseas.

Idrus said an ouster clause in the Immigration Act also stopped the court from inquiring into the decision made by the director-general.

The judge said Pua had no right to be heard, and the director-general had no duty to give a reason for stopping the politician from travelling abroad.

Idrus added that Pua had no legitimate expectation to travel as the passport was government property and could be withdrawn at any time.

Lawyer Bastian Pius Vendargon said this was a fit and proper case for the Federal Court to consider whether the director-general could be shielded by an ouster clause in the act after having allegedly made an error of law.

R Kengadharan

“A legal principle has been established by the court that an ouster clause cannot be operative once the decision-maker has acted beyond his jurisdiction,” he said.

Lawyer R Kengadharan meanwhile, said any government administrative decision must be examined by the court as arbiter between the state and the citizen.

“If not, the state will make arbitrary decisions that will threaten the civil liberty of the people,” he said, adding that the travel ban on Pua was wrong as he was not a threat to national or global security.

Kengadharan said the ruling could pave the way for the state, including religious authorities, to regulate the affairs and lifestyle of a certain community.

Haniff Khatri Abdulla

Lawyer Mohamed Haniff Khatri Abdulla said like judges, government administrators too must give reasons for their decisions.

“They too must be held accountable and be transparent in their actions,” he said.

Haniff said citizens who paid a fee to obtain passports had a legitimate expectation to travel unless they were security threats, declared bankrupt or involved in tax evasion.

Haniff said bench chairman Mohd Zawawi Salleh’s call for Pua to take the matter to the Federal Court also revealed that the Court of Appeal had made the ruling because it was tied by an earlier apex court decision.

“Pua’s matter is a fitting case to revisit several constitutional issues in the highest court of the land,” he added.

Pua took the authorities to court after he was prevented from leaving the country at klia2 on July 2, 2015.

The travel ban was later lifted, but Pua continued with his legal battle. -FMT