The right to travel abroad


  • A Humble Submission
  • Sunday, 29 May 2016

IT was recently reported that Malaysians who discredit or ridicule the Government in whatever way can be barred from travelling overseas for up to three years.

Those who disparage the Government while abroad can also be barred from travelling abroad again for three years, upon their return.

The report quoted the Immigration director-general who also added that the ownership of a Malaysian international passport was a “privilege” and not a right.

The existence of such a provision was also confirmed by the Deputy Home Minister, who was reported to have said that it is within the powers of the Immigration Department to bar a citizen from leaving the country and the Government did not have any obligations to inform the said citizen as to the reasons why he or she is barred.

The right to travel abroad is, however, a constitutional right guaranteed by Article 5(1) of the Federal Constitution.

This was the interpretation of the law by none other than the Federal Court in the case of Lee Kwan Woh v Public Prosecutor.

In that case, the Apex court decided that the argument that a passport is a privilege and not a right was an obsolete interpretation based on a precedent (specifically the case of Government of Malaysia v Loh Wai Kong) which was held to be “worthless”.

What this means is that as it stands, the right to travel abroad is part of the right to life and personal liberty contained in Article 5(1).

Thus, restricting this fundamental constitutional right, must, at the very least, be pursuant to a specific law.

There are existing laws which empower the Government through the Immigration director-general to prohibit a citizen from travelling overseas.

For example, under the law, the Government may prohibit a citizen from travelling overseas if one is in default of one’s PTPTN education loan.

However, there is no law, as it stands, which allows the Immigration director-general to restrict the travel of a Malaysian with a valid passport on the basis that they have “discredited or ridiculed the Government”.

The Government does not have some general power to restrict a person from travelling abroad arbitrarily.

To prohibit a citizen from travelling overseas when he or she has not been proven to have committed any offence is against the principles of natural justice.

In addition, although there is no specific requirement that the Government should inform a citizen of the grounds for a travel ban, it would be unfair to the person if the Government restricted what is essentially a right without they being informed of the reasons.

If the person wishes to challenge the travel ban in court, he or she must know the grounds for the prohibition against him or her. Or else, it would be akin to “shooting in the dark”.

As such, the statements from the Government relating to a citizen’s right to travel abroad are inaccurate. And any person who is subject to a travel ban for “disparaging or discrediting the Government” would have grounds to challenge the it in court.

> The views expressed are entirely the writer’s own.

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travel , passport , opinion , Syahredzan Johan , law

   

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