Court powerless to stop travel ban imposed by government

maria-chin-makamah

KUALA LUMPUR: The High Court today ruled that an amendment to the Immigration Act does not allow the courts to hear complaints from citizens who are banned from travelling overseas.

Justice Nik Hasmat Nik Mohamad said, as such, she could not provide the remedy sought by Bersih 2.0 chairperson Maria Chin Abdullah who was stopped from leaving Malaysia last year.

“The ouster clause in Section 59A of the Immigration Act has prevented aggrieved citizens the right to judicial review,” she said in dismissing the suit brought by Maria.

Nik Hazmat said that was the clear intention of Parliament when it approved the amendment to the law.

She said Section 59 of the legislation further allowed the respondents – the home minister and the Immigration director-general – the right not to give reasons why such a ban was being imposed.

“Their decision is non-reviewable in a court by way of judicial review,” she said in her oral decision.

The judge, however, did not order Maria any payment of costs to the government, which was represented by Senior Federal Counsel Shamsul Bolhassan.

She said it was also the government’s discretion to issue passports to its citizens.

“It is a privilege to travel to another country and it should be regulated by law,” she added.

She said neither the minister nor the director-general had violated the constitutional right of Maria in stopping her from travelling overseas.

“There is no breach of natural justice,” she added.

Nik Hasmat said Maria was able to travel and move freely within Malaysia and her livelihood was not affected.

She said Maria’s application was also academic as the travel ban was lifted two days later.

Maria, in her application, claimed that she was informed of her travel ban just shortly before she was to board a flight to South Korea on May 15 last year, at the Kuala Lumpur International Airport.

She said the authorities had failed to take into account that she was travelling to South Korea to attend a human rights conference and receive an award for Bersih 2.0.

In her court papers dated July 28, Maria had applied to quash the decision made by the respondents to blacklist her from travelling abroad.

Among others, Maria had applied to get a declaration that the respondents did not have the power to reach the decision and had, therefore, acted in excess of their jurisdiction.

Lawyer Gurdial Singh Nijar, representing Maria, said an appeal would be filed.

He said a Federal Court ruling on April 20 delivered by justice Zainun Ali had declared that the separation of powers among the three branches of the government allowed the court to check the excess of the legislature and executive.

“Today’s ruling makes it look as if it is the legislature that is supreme and not the constitution,” he said.

He said the judgment also indicated that citizens could not turn to the court for remedy when Parliament passed laws to give unlimited power to the executive arm.

“The Federal Court judgment clearly states that there will be no rule of law when there is an abuse of power,” he told reporters.

Gurdial said Zainun had declared that the separation of powers and the independence of the judiciary was a sacrosanct principle in a functioning democracy.

The lawyer said travelling overseas for various reasons was a right in the present globalised world.