KUALA LUMPUR: The Federal Court held in 2009 that the right of Malaysian citizens to travel abroad with a valid passport is not a mere privilege. This judicial pronouncement was made by a three-man bench led by chief judge of Sabah and Sarawak Tan Sri Richard Malanjum when deliberating on a criminal appeal, and now has a 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 includes 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 its interpretation, 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 was 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 make 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 judgment, 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 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  said  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 SN 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 are abroad.

The bench in Lee’s case had also upheld a passing remark by the late High Court judge Gunn Chit Tuan in the case of Loh Wai Kong v Government of Malaysia in 1978. Loh had sued the government for refusing to issue him a passport on the grounds that he was involved in a criminal case and that the issuance of a passport was at the discretion of the king.

The late justice Gunn held that the phrase “personal liberty” included the right to leave the country, and that the refusal to issue a passport constituted an infringement of the right to personal liberty.

Gunn in the end ruled in favour of the government, but despite this the public prosecutor still appealed to the Federal Court because of the judge’s observation on the right to travel.

The Federal Court then ruled that no such right existed, but Sri Ram said the court in the 1979 case lacked jurisdiction to hear the appeal because the matter was not on the merits of the case. He said the law as it stands today is that a litigant who has succeeded at the first instance has no right of appeal against a decision given wholly in his or her favour. “Yet it entertained the appeal and purported to allow it when the final order of the High Court was in the appellant’s [government’s] favour. Hence, the views expressed in Loh Wai Kong are worthless as precedent,” he said.

Loh was a permanent resident of Australia and returned home in 1975 but was charged with a criminal offence. He obtained bail on condition that he surrender his passport. In 1977, his passport expired and he applied for a new travel document, citing the need to return to Australia otherwise his resident visa there would expire. The government refused his application, citing his criminal case and the king’s discretion in issuing passports. Loh then filed a suit and asked the High Court to compel the government to issue him a passport.  — The Malaysian Insider

This article first appeared in The Edge Financial Daily, on December 10, 2014.