The Malaysian government has the right to bar any citizen from traveling abroad including government critics, the country’s second highest court ruled Wednesday in turning down an opposition member’s appeal.
The ruling by Malaysia’s Court of Appeal will affect government critics and human rights activists whose travels have been restricted by Malaysian authorities, including international award-winning satirical cartoonist and BenarNews contributor Zunar.
On Wednesday, a three-judge panel unanimously rejected an appeal by Democratic Action Party (DAP) publicity chief Tony Pua, a parliamentarian who was banned from leaving the country to travel to Yogyakarta, Indonesia, in July 2015.
Judge Idrus Harun said the right to travel abroad and the issuance of passports was a privilege accorded by the government at its absolute discretion.
“The provision on the right to travel overseas is not expressly embodied in Article 5 (of the Federal Constitution).
“The appellant has failed to show any merit in his case and we have no reason to interfere in the findings of the High Court,” Idrus said, affirming a lower court’s decision that went against Pua over his travel ban.
Article 5 touches on the fundamental liberties of a Malaysian citizen.
Judges Mohd Zawawi Salleh and Kamardin Hashim joined Idrus in the ruling.
Under Article 5 and the Immigration Act, Pua had no right to be heard and the Immigration Department director general was not duty bound to explain the reason behind the ban, the court ruled.
Pua, who was allowed to travel in October 2016 after the ban was lifted, had named the director general and the government as respondents.
Gobind Singh Deo, an attorney representing Pua, said he would appeal to the Federal Court, the nation’s highest court. He said the travel ban contradicted his client’s legitimate right to travel abroad with a valid passport.
Government lawyer Shamsul Bolhassan argued that passports were a privilege, not an absolute right of a Malaysian citizen.
Ruling affects critics
Apart from Zunar, the ruling is expected to impact Maria Chin Abdullah, the chairwoman of the Bersih grassroots movement, which has organized massive street demonstrations calling for transparent government in Malaysia.
Chin was barred from traveling to South Korea in May 2016 to receive a human rights award. She said authorities had assured her in December 2015 that a 2012 ban had been lifted, but she was blocked from leaving Malaysia five months later.
Zunar, whose real name is Zulkiflee Anuar Ulhaque, said freedom of movement was a fundamental right of all citizens as clearly stated under Articles 5, 8 and 9 of the Constitution.
“Fundamental is a hard fact, it is not open to interpretation,” he told BenarNews. “It is also stated in the Universal Declaration of Human Rights by the United Nations. I do not know why judges choose gray when black and white is right in front of them.”
Zunar is expected to present his challenge to being banned from leaving the country since June 2016 before a lower court on Sept. 25.
“It will be difficult for me because, in normal practice, the High Court will follow the decision of the Court of Appeal,” the winner of the 2016 Cartooning for Peace Award said.
“Nevertheless, I will keep fighting, fighting and fighting to get back my right to freedom of movement.”
As of November 2016, more than 700,000 citizens were barred from leaving the country, the New Straits Times reported at the time. Many were detained because of outstanding debt.
Travel bans are politically motivated and the public expects the courts to defend the rights of the citizens or at least demand authorities explain their actions, said Eric Paulsen, executive director of Lawyers for Liberty, a local NGO.
“We are shocked by the decision as it is giving the immigration authorities carte blanche powers to decide as they pleased to ban anyone from traveling without giving any reasons or justification.
“That cannot be right if we are living in a parliamentary democracy with constitutional rights,” he told BenarNews.
Another lawyer, Mohamad Haniff Khatri Abdulla, who has been speaking out against Prime Minister Najib Razak’s government, urged Pua to appeal to the Federal Court to correct the decision.
“There has been a recent decision of the Federal Court, which says no law can prevent the courts from doing justice and the courts must check and balance the executive arm of the government to ensure the preservation of the rule of law,” he told BenarNews.
Malaysian authorities had introduced a policy that bans citizens who discredit or ridicule the government from traveling abroad, according to a local newspaper, drawing criticism from civil liberty advocates.
“Anyone who runs down the government or ‘memburukkan kerajaan’ [‘smears the government’] in any manner will be barred from going abroad,” a source in the Immigration Department told The Star in May 2016.
Then-Immigration Director General Sakib Kusmi confirmed the existence of the new policy, saying that owning a passport was “a privilege and not a right.”