Court to judges: Be circumspect when relying on foreign laws

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PUTRAJAYA: The Court of Appeal has reminded judges to be cautious in relying on foreign legislation to interpret articles in the Malaysian Constitution.

Justice Idrus Harun said decisions from foreign jurisdictions, such as India and the United States of America, had to be approached with care as guides to the interpretation of individual articles in the constitution.

“This is because of the wordings of constitutional provisions which might minimise the utility of foreign law in the domestic context,” he said in a written judgment delivered yesterday.

Idrus made the remark in the unanimous 44-page judgement which dismissed Petaling Jaya Utara MP Tony Pua’s appeal on his right to travel.

A three-man bench held that the right of Malaysian citizens to travel overseas was at the absolute discretion of the government.

Idrus, a former solicitor-general, before he was elevated as Court of Appeal judge, said Article 5 of the constitution on the right to liberty excluded the right to travel abroad.

Idrus said judges should decide cases “in the light of our constitution, our own laws and the conditions in our country which are not necessarily the same as conditions in other countries”.

Lawyer Gobind Singh Deo, who represented Pua, had persuaded the bench to accept the 2009 Federal Court decision in the case of Lee Kwan Woh v Public Prosecutor that the right to leave Malaysia was a fundamental liberty guaranteed under Articles 5 and 8 of the constitution.

Government lawyer Shamsul Bolhassan submitted that the 1979 case of Government of Malaysia & Others v Loh Wai Kong was still a good law that a citizen had no absolute right to travel overseas.

The bench then ruled that “personal liberty” in Article 5 meant liberty relating to or concerning the person or body of the individual.

The legal principle established in Loh’s case was then followed in Pihak Berkuasa Sabah v Sugumar Balakrishnan (2002), Majlis Agama Islam Wilayah Persekutuan v Victoria Jayaseelee Martin (2016).

The bench agreed with Shamsul that in the cases involving Loh, Sugumar and Victoria, Article 5 had been correctly interpreted and that any amendment could only be done by Parliament.

Idrus said clauses (1) to (5) in Article 5 were not mutually exclusive and no clause in this article was an island in itself.

“The whole article is a code which embodies constitutional safeguards against transgression to all right relating to the person or body of the individual,” he said.

He said the correct approach would be to interpret Article 5 (1) by looking at the other clauses of the article as well.

Idrus said the legislative history of the Merdeka constitution also pointed out that the rights guaranteed should be freedom from arrest and detention without lawful authority.

Pua brought the authorities to court after he was prevented from leaving the country at the KL International Airport 2 on July 2, 2015.

The DAP national publicity chief then was only a witness in police investigations involving activities allegedly detrimental to parliamentary democracy.

The travel ban was later lifted but Pua continued with his legal battle.