PETALING JAYA: Zaid Ibrahim has criticised the lack of common sense applied by the High Court judge in the review of the home minister’s and immigration department director-general’s decision to ban Maria Chin Abdullah from travelling overseas.
Referring to the decision on May 18 by judge Nik Hasmat Nik Mohamad, the former de facto law minister said he was disappointed with the outcome.
“I have always thought a good judge is someone whose decisions are based on 90% common sense and 10% on applying correct legal principles. Here the judge failed the first part of the formula.
“What Nik Hasmat basically said was that when Parliament enacts an ‘ouster clause’ in the Immigration Act, which prevents aggrieved citizens from challenging the travel ban, the courts can do nothing,” Zaid said in a blog posting today.
He added that unlike in the United Kingdom, where the written law by Parliament was supreme, in Malaysia, it was the Federal Constitution that reigned supreme.
“That is why only last month the Federal Court made a historic decision that ‘judicial power’ is still vested with the courts.
“It’s meaningless for judges to accept the principle of having the ultimate power to do ‘justice’ if they then declare ever so timidly, and unconvincingly, that the court is powerless whenever an act of Parliament is put before them,” he said.
He also expressed his hope the “Court of Appeal judges will rectify this ridiculous and unjust decision”.
Zaid, who joined DAP earlier this year, called for more action on the part of judges to uphold justice when faced with cases which restrict or curtail a citizen’s liberty.
“A judge must be willing to ask the home minister why it is necessary for Maria Chin to be deprived of her freedom to travel.
“A judge who is not willing to ask a minister to explain his decision, to explain why a restriction or curtailment of liberty is necessary, is not interested in upholding justice,” he said, adding that no where in the Constitution does it state that the minister knows best.
“Neither does it say the Barisan Nasional government knows best.”
Using Article 5 of the Constitution on the “right to life and liberty” as the basis, Zaid said to deny a citizen a passport was to deny the plain meaning of the law, which was the right to travel, to move about and to be free.
“There is zero basis for saying having a passport is not a right. A passport is the instrument through which a government introduces its citizen to a foreign country and requests that this individual be granted access to this territory.”
Lamenting the state of the Bench in Malaysia, Zaid said he never regretted his decision to turn down an offer to become a judge about 25 years ago.
“I would never have been able to forgive myself if I had sat on that lofty Bench and then decided I was powerless to see to it that justice was done.
“I could never have said to an aggrieved citizen: ‘Sorry, there is nothing I can do so seek help elsewhere.’ What then would I have done with that seat on the Bench?”