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Thursday, July 6, 2017

Puzzling rulings of the judiciary



MP SPEAKS | The law is a process of reasoning. It strives to establish justice. Logic is the principal instrument in this pursuit of moral precepts whose goal is to secure justice for members of civil society.
Unfortunately, logic was the chief casualty in two recent judicial rulings.
One ruling held that the prime minister of the country did not fall within the ambit of the term “public official”.
Another ruling, handed down by the Court of Appeal yesterday, held that the right of every Malaysian to travel abroad is at the absolute discretion of the government.
I want to dwell on this latest ruling because of its immediacy and its impact on civil society activists whose right to travel abroad has been denied.
The appellate court dealt with two articles in the Federal Constitution when ruling in the case of my colleague Tony Pua (MP for Petaling Jaya Utara), who sued for the restoration of his right to travel to Jogjakarta, Indonesia, after the Immigration Department had denied him that right two years ago.
A three-member bench ruled that Article 5, which enshrines personal liberty, does not confer on an individual the right to travel abroad, and that Article 9, which recognises freedom of movement, refers to the freedom to move among the states of the country, and not abroad.
The court took an unwarrantedly narrow interpretation of both articles, although it invited Pua's counsel to refer to the Federal Court questions with respect to the ambit of Article 5 on personal liberty.
It is true that Article 5 on personal liberty does not enumerate as a right the liberty of an individual to travel abroad.
But if every citizen of the country is allowed to obtain a passport, it stands to reason that he or she has the right to travel abroad. The one conferment is ineluctably bound up with the other.
If an individual has the right to acquire a car driving licence, it stands to reason that he or she is not required to request the permission of the authorities to drive his or her car out of his or her garage on to the highway.
The freedom to drive a car is consequent from the right to acquire a driving licence. Thus the right to travel abroad stems from the validity of a passport obtained by an individual.
It is illogical to allow an individual to acquire a passport and then restrict its use for overseas travel by saying this liberty to go abroad is contingent on Immigration's sayso.
Although arguments were adduced in Pua's case in the High Court on whether the acquisition of a passport is a privilege or a right, they are not germane to the thrust and meaning of Articles 5 and 9 - the one enshrining personal liberty and the other conferring freedom of movement.
Any conception of personal liberty that bars overseas travel and any endowment of freedom to travel that excludes sojourning abroad are curtailments that are unsustainable based on a reading of our constitution which embeds liberal democratic tenets.
Similarly, a conception of the office of prime minister of Malaysia that does not construe it as a public office and its holder as a “public official”, as a judicial officer held a few months ago, is lame to the point of being ludicrous.
Further, the judges are out of trend when they ruled that the Immigration Department need not give reasons on why Pua was prohibited from travelling abroad. In fact, moving with world- wide judicial trends, the judges should have demanded why is the Immigration Department isolating itself and shying from giving convincing legal reasons that the ban was required? But by not insisting on this, the judges have failed to make the Immigration Department and thus other government departments accountable to the tax payers!

The judiciary is a vital prop of the government whose devotion to the logic and majesty of the law is the warp and woof of civil society.
It becomes a travesty of justice when the courts demean the law's majesty by scanting logic through unwarrantedly mincing interpretations.

M KULASEGARAN is MP for Ipoh Barat -Mkini

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