Travel is a privilege, not right

PUTRAJAYA: The Court of Appeal today ruled that the right of Malaysian citizens to travel overseas is at the absolute discretion of the government.

The court ruled that the provision on the right to travel overseas was not expressly embodied in Article 5 of the Federal Constitution that addresses rights to liberty.

This was stated by Justice Idrus Harun in handing down a unanimous decision of the court to dismiss an appeal by Petaling Jaya Utara MP Tony Pua.

The panel, comprising judges Mohd Zawawi Salleh, Kamardin Hashim and Idrus, upheld the decision of the High Court last year.

Pua had sought a judicial review to challenge the decision of the Immigration director-general (DG) to bar him from travelling abroad after he was prevented from leaving the country at klia2 on July 2, 2015.

High Court Judge Datuk Hanipah Farikullah had on July 27 last year, ruled that the Immigration DG was empowered to prevent someone from leaving the country under Section 3(2) of the Immigration Act 1959.

Hanipah noted that the Immigration DG had issued the travel ban as he was informed by the inspector-general of police that Pua was being investigated for an alleged offence under Section 124B of the Penal Code.

The High Court found that Article 5, which speaks of personal liberty, did not include the right to travel or the right to a passport, while Article 9 which covers a person's fundamental right of movement, was silent on the right to travel overseas.

In his judicial review application, Pua who is DAP national publicity secretary, claimed he was prevented from leaving the country at klia2for Yogyakarta, Indonesia, on July 2, 2015 although his passport was valid until April 23, 2020.

Pua claimed the Immigration DG's decision was ineffective under the law as it was in contradiction to his legitimate rights to travel abroad using a valid passport.

"The issuance of passports to citizens to travel abroad is a privilege accorded by the government," Idrus said today.

"The term 'personal liberty' in Article 5 in the Malaysian constitution must be construed narrowly and is confined to the mounting of any challenge against the authorities for unlawful detention of a person," he added.

He said under Article 5 and the Immigration Act, Pua has no right to be heard and the Immigration DG has no duty to give any reason for imposing the travel ban.

He said the court saw no reason to interfere in the findings of the High Court as Pua had failed to show any merit in his appeal.

The panel, however, ordered that no cost be paid to the government, as it is a public interest case.

Meanwhile, Zawawi encouraged Pua to take the matter up to the Federal Court to determine the constitutional issues in the highest court of the land.

Gobind Singh Deo, who represented Pua, said he would file a leave-to-appeal application within 30 days as there are serious questions of law that need to be raised.