Najib’s travel ban: Let not history repeat itself — Harinder Singh and John van Huizen

MAY 13 — The 12^th of May 2018 was a day of irony. At the dawn of this new chapter in Malaysian history, ousted ex-Prime Minister Datuk Seri Najib Razak and his wife Rosmah Mansor; found themselves imposed a travel ban by the Immigration Department. They were unable to leave Malaysia. The similar position harsh critics of the couple in the past found themselves in too, during Najib’s reign.

It is pertinent to know that the Malaysian Immigration Department wields absolute and unfettered discretion to impose a “travel ban” on any person, from leaving Malaysia. The Court of Appeal in the case of Tony Pua v Ketua Pengarah Imigresen Malaysia in 2017, affirmed this. The D-G of Immigration possesses the power to bar anyone from leaving Malaysia.

This discretion vested in the D-G of Immigration is wide and unfettered. At his will, the D-G is free to prevent anyone from leaving the country – without having to be held accountable to any higher authority. To make matters worse, the Immigration Act 1959/63 further prevents the D-G’s travel ban from being challenged or questioned in court. Neither does the person imposed a travel ban upon have a right to be heard before the ban is imposed. The provisions of the Immigration Act are indeed vile.

The right to travel abroad is sacred. In India, it has gone insofar to be recognized as a constitutionally guaranteed right. Thus such wide and unfettered discretion to temper with such a right; must never be vested in an Executive organ of state. Where the avenue to craft such arbitrary decisions exists, there is bound to be abuse. And the arbitrary travel bans imposed on political dissidents in the near past by the D-G of Immigration stands cogent evidence of such abuse.

Reforms
In light of such, this new government of Malaysia – a fresh breath of hope after 60-years – must act to curtail such excessive powers. In keeping true to its promises of institutional reform and decentralisation of powers, the Pakatan Harapan must return the power to impose such travel bans (an admittedly necessary power), to the Judicial organ of state – the courts, in whom the judicial power of the Federation rests.

Vesting such a power in the Judiciary would ensure all applications for travel bans are heard before independent judges – whose positions are constitutionally safeguarded – on their respective merits and facts. This would check and sanctify the integrity of a travel ban in law, ensuring that it is only imposed when duly necessary.

Whilst the travel ban imposed on Najib and Rosmah may be for legitimate reasons and concerns, and in line with existing law; we must not forget that it remains law susceptible to grave abuse. We must not take such power for granted. Let us not forget the times where this law was arbitrarily abused time and again – Tony Pua, Zunar, Maria Chin; to name a few. And it can therefore be abused again.

The wide discretion of the D-G of Immigration to arbitrarily impose a travel ban – must be axed. Prime Minister Tun Dr. Mahathir has emphasised ardently that the rule of law must be upheld: thus the time for reform is here and it is now; may it be forbidden that we fall for the comforts of complacency once again.

* Harinder Singh and John van Huizen are law students at Multimedia University.

**This is the opinion of the writers and does not necessarily represent the views of Malay Mail.