Malaysian Bar Council: Summary and arbitrary restriction of the right to travel is an abuse of authority

The following statement was first published on the Malaysian Bar Council website.

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The Malaysian Bar deplores the growing trend of the Federal and State Governments imposing travel bans on Malaysian citizens seeking to move within and without Malaysia.

These appear to be done either by misconstruing existing legal provisions or, worse still, in the absence of any legal basis whatsoever.

The recent ban imposed on Maria Chin Abdullah, the Chairperson of the Coalition for Clean and Fair Elections (“BERSIH 2.0”), is a deeply troubling example.

The immigration authorities prevented her from boarding her flight to South Korea at Kuala Lumpur International Airport on 15 May 2016.

She was on her way to accept the Gwangju Prize for Human Rights 2016 on behalf of BERSIH 2.0.

It has been reported that Maria Chin Abdullah had not been given any prior warning or notice by the immigration authorities that she had been barred from leaving the country.

Indeed, it has also been reported that she had travelled overseas as recently as December 2015 without any hindrance.

The immigration authorities have also inexplicably refused to provide her with any written document and, in fact, any reason whatsoever for her travel ban, merely saying that it was on the “instructions of Putrajaya”.

The Deputy Minister for Home Affairs I, Datuk Nur Jazlan bin Mohamed, was then quoted as saying that the Government has “… the power to bar anybody from leaving the country … It’s the power given to the Immigration; we don’t need to explain why."

The Malaysian Bar respectfully disagrees with the Deputy Minister for Home Affairs I. There is no general discretionary power to restrict a citizen’s right to travel in and out of Malaysia.

Unrestrained discretion in the hands of the Government is a myth.

There is a limited power to restrict a citizen’s right to travel, but only under specific legislation such as Section 104 of the Income Tax Act 1967 and Section 38A(1) of the Bankruptcy Act 1967. There is no express provision to bar travel under the Immigration Act 1959/63.

Further, a travel ban violates the right to life or personal liberty that is guaranteed in Article 5(1) of the Federal Constitution, which extends to the right to travel.

It is also untenable for the immigration authorities to restrict an individual’s right to travel without giving any written reasons.

There is a duty to give reasons in law when a fundamental right is denied. The immigration authorities therefore have a legal obligation to provide the justification for imposing a travel ban on a particular individual.

The failure to specify the basis for barring travel would imply that none in fact exists, and that the decision is simply a capricious exercise of discretion by the immigration authorities to restrict freedom of movement of selected persons.

It gives rise to a perception of abuse of power. This and other incidents of travel bans being imposed will also invariably be viewed as a blatant attempt to intimidate and silence those who seek to exercise their freedom of movement and expression to expose wrongdoing within the corridors of power.

In properly upholding the rule of law and administration of justice, there must be accountability and transparency in decision-making by law enforcement authorities. Power must not be wantonly accumulated and wrongfully exercised.

It should not be forgotten that Parliament has approved amendments to the Sedition Act 1948 to allow for criticism of Government, which the Government has refused thus far to bring into force.

Travel bans must not be used to perpetuate that which has, in principle, been abolished.

The Malaysian Bar calls on the Malaysian Government to immediately rescind the overseas travel ban that the authorities have imposed on Maria Chin Abdullah and others, and to cease and desist from resorting to any illegitimate means of wrongfully silencing its critics.

The Government must also take concrete measures to promote open and constructive criticism of itself by others, safeguard each citizen’s right to unimpeded freedom of movement and freedom of expression, and adhere to basic principles of the rule of law and natural justice.

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Steven Thiru

President

Malaysian Bar