For the full statement, and the related reports - MADPET - Malaysia Must Respect Right To Travel Outside The Country – No Last Minute Denial Of Right Without Expressed Reasons, The Right To Be Heard And/Or Judicial Review
Draconian provisions in Immigration Act must be repealed
Charles Hector
Published
Updated
Malaysians Against Death Penalty and Torture (Madpet) is disappointed
with the Court of Appeal’s decision, as reported in the media, that
suggests that Petaling Jaya Utara MP Tony Pua has no right to be heard
and that the Immigration Department director-general is not required to
give any reason for imposing such a ban.
The fact that any Malaysian could at any time be barred from leaving
the country, without knowing why, and without even being accorded the
right to challenge the action of the Immigration Department in court is
certainly unacceptable and most unjust.
Justice Idrus Harun, who delivered the unanimous decision of the
court, said Article 5 of the Federal Constitution on the right to
liberty excluded the right to travel abroad.
He said Pua, under Article 5 and the Immigration Act, had no right to
be heard and the Immigration director-general had no duty to give
reason to impose the travel ban. The quorum of the Court of Appeal was
Mohd Zawawi Salleh, Kamardin Hashim and Idrus.
Section 59 of the Immigration Act 1959/63 states that "no person and no member of a class of persons shall be given an opportunity of being heard before the Minister or the director-general, or in the case of an East Malaysian state, the state authority, makes any order against him in respect of any matter under this Act or any subsidiary legislation made under this Act".
It is so wrong for a person, who had expended monies and effort, to be suddenly barred from travel at the international airport.
Prior notice of a ‘travel ban’ is definitely more just, and accords
the victim the right and opportunity to challenge the validity of such
ban.
The state of affairs suggests that Malaysians may consider themselves
"detained" within Malaysia for the director-general of immigration can
at any time "secretly" decide that they be not be allowed to travel out
of Malaysia.
Worse still, the victim of the travel ban seems to also not have a right to know the reason why the ban was imposed.
The earlier High Court judgment in Pua’s case, stated, amongst
others, "… The above evidence also shows that the director-general of
immigration has given his reasons even though he is not required to do
so under the Immigration Act".
This goes contrary to norm in the administration of justice, where
even the arresting or investigating authority is required to explain the
reasons for any such arrest or investigations to persons affected.
Rights and liberties should never be denied without giving reasons to victims.
Without the right to know the reasons, for the denial of the ability
to leave Malaysia (and possibly also the right to enter the country),
any victim would be extremely prejudiced and subjected to serious
injustice.
Without knowing, he/she could also not correct the possible mistakes,
lies or false facts upon which the director-general of immigration may
have wrongly relied on when he decided on such travel bans.
The denial of the opportunity to be heard even before the director-general or the minister makes it all the more unjust.
Section 59 and other sections that deny such rights must be repealed,
and the right to know the reason for the imposition of restrictions
and/or travel ban, and the right to be heard must be guaranteed in law.
Judicial review to prevent abuses
Judicial review is the power given to courts and judges to review
executive action to determine that it is just and in accordance to the
law.
It is a necessary check and balance in any democracy. It is wrong to
have laws that enable the arbitrary unchecked exercise of power by the
executive, be it the prime minister, ministers, police, the
director-general of immigration or any other government department.
Denial of the right to judicial review of the reasons for the restrictions and/or travel ban is unjust.
Section 59A of the Act states, "(1) There shall be no judicial review
in any court of any act done or any decision made by the minister or
the director-general, or in the case of an East Malaysian state, the
state authority, under this Act except in regard to any question
relating to compliance with any procedural requirement of this Act or
the regulations governing that act or decision".
It is the reasons for the imposition of bans/restrictions that need
to be reviewed by court – not simply whether the procedure was followed.
This exclusion of the right of the victim to ask the court to review
the reasons for the detention, and in this case, travel bans imposed on
him/her, makes the Immigration Act similar to other draconian detention
without trial laws like the Prevention of Crime Act 1959(Poca) and
Prevention of Terrorism Act 2015 (Pota).
The Immigration Act seems worse since there is not even the
obligation to inform the person prevented from leaving the country the
reasons for the said "ban".
Travel bans should only be imposed by the courts
It must not be forgotten that a person is presumed innocent until proven guilty in court.
A person being investigated is merely a suspect, and the fact that
one is being investigated will really not be known to many unless, they
have previously been arrested on suspicion of having committed a crime,
or have been called in to give a statement in connection with an
investigation that one may have committed some crime.
Note witnesses are also called in for purpose of investigation, and here they can never be considered suspects.
Restrictions of movement out of the country can generally only be
imposed after one is charged with a crime, and is released on bail,
where the court may, in exceptional cases, impose a "travel ban"
preventing the accused from leaving Malaysia.
For suspects and potential witnesses, such powers should never be in
the hand of the police, Immigration Department or government, but only
the courts.
The law requires that even a suspect arrested, cannot be detained longer than 24 hours without a magistrate’s remand order.
It is absurd that the power to impose travel bans should rest solely
in the hands of the Immigration Department – and not the courts.
Without the possibility of judicial intervention, the risk of abuse of power is unchecked.
In this case, however, there were no such prior restrictions imposed by the police and/or the courts.
Pua was allegedly suddenly prevented from leaving the country at the KL International Airport 2 on July 2, 2015.
Individuals subjected to "travel bans" should be notified immediately
when they are being subjected to such restrictions – to not do so, and
suddenly stop them after they had made plans and expended monies, at the
airport or exit points is wrong and unjust.
It suggests that the Immigration authority may have had a wrong
motive of causing additional suffering on the victim – prior
notification would have prevented such injustice and personal losses.
Prior notice would also accord the right of the victim to challenge
any such orders, restrictions and bans, and no reasonable person would
have expended monies and energy planning trips if they knew there was a
travel ban.
I suspect that Pua was not compensated for even the monies that he
had spend purchasing his flight tickets and for other expenses already
spent for that trip.
It may be a good idea that the Immigration Department at their
website, also place lists of persons who are prevented from travelling
out of the country.
Judges must act without fear to uphold justice
In Malaysia, a parliamentary democracy, we have three branches of
government – the legislature, the executive and the judiciary is to
ensure that any one branch of government, especially, the executive does
not abuse its powers and do injustice.
Judicial review is the process that allows a person aggrieved by a
decision of the executive to be able to take the matter to the courts,
who will then decide whether what was done was just and right.
Given Malaysian parliamentary culture, whereby the ruling party
backbenchers, do not seem to oppose or disagree with the executive,
which is led by the prime minister/menteri besar/chief minister, who
also happens to be the party leader, the role of judiciary to be a check
and balance is of becomes all the more important.
It is sad that, in the past, Parliament, possibly under the influence
of the executive, has passed laws that attempt to restrict the powers
judiciary, thus weakening their ability to be a necessary and effective
check and balance.
Thus, it falls upon judges in Malaysia to bravely uphold the cause of justice and the rule of law without fear or favour.
Judges in Malaysia risk the possibility of being transferred or not
being promoted or confirmed when they are still judicial commissioners,
but that is a risk that they must all face in the interest of justice
and human rights.
Bad laws inconsistent with justice, human rights and the rule of law should never be allowed to hinder the upholding of justice.
Therefore Madpet,
Calls for the immediate repeal of laws and/or provisions of law like
Section 59 and 59A of the Immigration Act that attempts to exclude
judicial review and the right to be heard;
Calls for the immediate revocation of all travel bans and/or
restrictions imposed by the police, Immigration Department and/or
ministers, which are not imposed by courts and judges after according
the intended victim the right to be heard.
Call for the Malaysian government, to immediately compensate Pua and
all other victims who had expended monies, by reason of the failure of
prior notification of such travel bans.
Calls on Malaysian judges and the Judiciary to uphold the cause of justice without fear or favour.
Calls on Malaysia to respect justice and human rights, and ensure
that all branches of government that play an essential role of check and
balance in a democracy are not impeded by law and/or other actions.- Malaysiakini, 6/7/2017
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