Immigration DG’s decision to impose travel ban on Maria Chin invalid, rules court

 

Petaling Jaya MP Maria Chin Abdullah was informed of her travel ban shortly before she was to board a flight to South Korea on May 15, 2016 at KLIA.

PUTRAJAYA: The Federal Court today unanimously ruled that the immigration director-general was wrong in imposing a travel ban on Petaling Jaya MP Maria Chin Abdullah on grounds that she had criticised the government.

A majority of four judges – Rohana Yusuf, Abdul Rahman Sebli, Hasnah Mohammed Hashim and Mary Lim Thiam Suan – also ruled that Sections 59 and 59A of the Immigration Act were valid.

They also maintained that the legal principles established in two previous apex court rulings – Government of Malaysia & Ors v Loh Wai Kong and Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan – on immigration-related matters were still good precedents to follow.

The minority, consisting of Chief Justice Tengku Maimun Tuan Mat, Nallini Pathamanathan and Harmindar Singh Dhaliwal, took the position that the two sections were unconstitutional.

They also ruled that the two judgments were no longer good pronouncements as narrow construction of the laws were used to derive at a decision.

Section 59 of the legislation allows the home minister and immigration director-general the right not to give reasons for their action, except for procedural non-compliance.

The ouster clause in Section 59A of the Immigration Act prevents aggrieved citizens the right to judicial review.

Rahman, who delivered the majority ruling, said Section 59A was a law passed by Parliament.

He said federal laws had also determined the jurisdiction and powers of the High Court in immigration matters and were only to adjudicate on procedural non-compliance of the decision maker.

“The High Courts have no jurisdiction to travel outside the confines of that power,” he said, adding that Section 59A had expressed with irresistible clearness the intention of Parliament to exclude judicial review on the decision of the minister, the immigration director-general, and the Sabah and Sarawak state authorities.

He also said Sections 59 and 59A were also not inconsistent with Articles 4 (1) and 121 of the constitution

However, on the peculiar facts and circumstances of Maria’s case, Rahman said the reason given by the director-general was inappropriate.

“Although the director-general has discretionary power to impose a travel ban, the discretion is not unfettered,” he said.

Tengku Maimun said although the minority were striking down Section 59A as unconstitutional, it did not mean the judiciary was supreme.

“As the guardian of the constitution, the judiciary too must observe the doctrine of separation of powers,” she said.

She said item 3 of a circular allowed the director-general to impose a travel ban but in Maria’s case, he did not make out a case.

“Instead, what they did was to ‘blacklist’ her to restrict her travel despite she having a valid passport,” she said.

Tengku Maimun said having perused the circular, she could not find anything in the document suggesting, even remotely, that the director-general had the power to “blacklist” a person holding a valid passport.

She said a previous apex court narrowly constructed Article 5 (1) on personal liberty to deny the right to travel.

“With respect, the narrow construction can no longer withstand the powerful force of the river current that represents our present day constitutional law and theory,” she said.

She said Maria was also denied the right to be heard when the immigration director-general refused to give reasons for the travel ban.

Maria claimed she was informed of her travel ban just shortly before she was to board a flight to South Korea on May 15, 2016 at KLIA.

However, the travel ban was lifted two days later. She then filed a judicial review to challenge the decision to bar her from travelling. She lost her case in the High Court and Court of Appeal. - FMT