PETALING JAYA: Former Malaysian Bar president Ambiga Sreenevasan, who has filed an application for leave to appeal her travel ban to Sabah, will not be present when the Federal Court hears the case in Kota Kinabalu.
Her lawyer Gurdial Singh Nijar said a request by letter to have the matter heard in Putrajaya on July 31 had been disallowed.
“The apex court will hear the leave application in Kota Kinabalu without the presence of the litigant (Ambiga),” he told FMT.
In the past, the Federal Court had heard matters in Putrajaya, including leave applications originating from Sabah and Sarawak.
Ambiga, who is also Malaysian Human Rights Society president, has been on the banned list to the state since late 2014.
Gurdial, however, said he had obtained a special admission from the High Court of Sabah and Sarawak to represent Ambiga.
Lawyers from the peninsular do not have an automatic right to practise in the Borneo states and the counsel applying for the ad-hoc admission must also obtain a work permit from the Immigration Department there.
Last year, the Court of Appeal affirmed the decision of the High Court to stop Ambiga from entering Sabah on grounds that Malaysia’s highest court had in 2002 ruled that the judiciary could not inquire into why such a decision was made.
A three-man bench chaired by justice Mohd Zawawi Salleh said Section 59A(1) of the Immigration Act was drafted for the exclusion of judicial review in any court of any act done or any decision made by the home minister.
Zawawi said even the decision of the Immigration Department’s director-general or the authority of Sabah and Sarawak could not be questioned except for non-procedural compliance.
He said the bench was not persuaded to depart from the decision in Sugumar Balakrishnan v Pihak Berkuasa Negeri Sabah as it was bound by the doctrine of binding precedent when the material facts and issues were the same.
In that case, Sugumar sought the reinstatement of his entry permit to the state of Sabah but the Federal Court ruled that the right to personal liberty guaranteed by Article 5 of the Federal Constitution could not be construed in broad, generous terms, and as such denied Sugumar’s application.
Ambiga filed a judicial review of the state’s refusal to allow her to enter Sabah on Nov 25, 2014, for a roadshow with pro-unity group Negara-Ku, of which she is a patron.
She then wrote to the state immigration authorities to find out why she was barred from entering Sabah but was not given a reason for the prohibition.
On Wednesday, another Court of Appeal bench also ruled that the government had absolute discretion to decide if Malaysian citizens had the right to travel overseas despite holding a valid passport.
Justice Idrus Harun, who delivered the judgement of the court, said the phrase “personal liberty” in Article 5 excluded the right to travel outside Malaysia.
He said such right was only confined for an aggrieved party to mount a legal challenge against the authorities in case of unlawful detention and arrest.