KUALA LUMPUR, May 19 ― The law does not expressly allow the government to restrict Malaysians’ travel without reason, legal experts contended after a deputy minister said Putrajaya was not obliged to justify such bans.
Conceding to Datuk Nur Jazlan Mohamed who said no law compelled authorities to explain these restrictions, they countered by highlighting that legislation was also silent on powers to arbitrarily bar Malaysians from leaving the country.
“There's no specific powers in the Immigration Act which says they can bar anyone from going without reason. It is incumbent upon you (the government) to justify why,” the Lawyers for Liberty (LFL) executive director Eric Paulsen told Malay Mail Online when contacted.
Paulsen said vague laws did not mean Malaysians lacked rights or their rights were not violated, arguing that travel bans without reason or even a valid reason could be an unconstitutional restriction of their liberties.
He said travel restrictions prompted by bankruptcy or the planned commission of terrorism may possibly be justified.
“But no one is so arrogant to say ' We are not going to give any reasons”. That cannot be the position in law because you must at least tell me why I'm being barred from going overseas,” he said, stressing the need for natural justice where Malaysians are allowed to answer allegations against them.
Paulsen cautioned, however, that Malaysians who attempt to challenge the constitutionality of travel bans imposed on them would face an uphill challenge, noting that judges appear to be reluctant to interfere in the daily running and decision-making process of the Executive.
Another obstacle would be the ouster clause in the Immigration Act, in which Section 59A (1) states no judicial review can be brought against any action or decision made under this law unless it is related to compliance to procedural requirements, he said.
Civil liberties lawyer Syahredzan Johan said the Immigration director-general's power to bar Malaysians from leaving the country must be exercised according to specific laws, such as over defaults in taxes or federal education loans under the National Higher Education Fund Corporation (PTPTN).
“The director-general cannot simply ban a person without reason. That is why the person banned must be informed of the reason why he or she is prohibited from leaving the country so that he or she may be able to take action if he or she feels aggrieved.
“It would be unfair to the person if his or her constitutional right is infringed without his or her knowledge,” he said, noting that Malaysians' rights under Articles 5 and 9 would be violated if “unlawful and unreasonable” restrictions are imposed.
Lawyer Gobind Singh Deo pointed out that there is no specific provision of law which allows the Immigration Department to impose travel bans without reason.
“Decisions made of that nature is subject to judicial review, they must be reasonable. If they are not reasonable, I'm of the view they can be challenged in court,” he said, adding that reasons must be given as they would be the subject of legal challenges in court.
“That is the question currently pending before courts in Tony Pua's application, whether there is a specific provision to bar a person from traveling and whether it is subject to judicial review and whether it can be challenged if it's not reasonable,” said Gobind, who is representing Pua in his judicial review suit over a travel ban on him without prior notice or reason given.
On Monday, Deputy Home Minister Nur Jazlan said the Immigration Department did not have to explain itself when exercising its powers to bar Malaysians from leaving the country.
He was commenting on the government’s unexplained move last Sunday to block Bersih 2.0 chairman Maria Chin Abdullah from going to South Korea to receive the Gwangju Prize for Human Rights on behalf of the polls reform group.