Right to travel abroad cannot be taken away, says 2009 Federal Court ruling
V. Anbalagan, The Malaysian Insider
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 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.
