KUALA LUMPUR: The High Court has dismissed cartoonist-activist Zunar’s application against the travel ban imposed by the Immigration Department on grounds it is bound by a recent Court of Appeal ruling.
Justice Azizah Nawawi said she had to adhere to the binding precedent in the case of (Tony) Pua Kim Wee, who had also unsuccessfully challenged the decision of the Immigration Department director-general.
On July 4, Court of Appeal judge Idrus Harun, who affirmed a High Court ruling, said although the right to life and personal liberty were guaranteed under the constitution, any deprivation of such a right was allowed if it was in accordance with the law.
He said Section 59 of the Immigration Act was one such law enacted by parliament. The legislation also denied the aggrieved party the right to be heard.
On Nov 6, a three-man Federal Court bench chaired by Chief Justice Raus Sharif, in dismissing Pua’s application for leave to appeal, said the law had been settled in Loh Wai Kong’s case.
In the 1979 case, the then lord president Mohamed Suffian Mohamed Hashim ruled that the right to personal liberty under Article 5 of the Federal Constitution was only to challenge the authorities for any unlawful detention.
Azizah also dismissed Zunar’s alternative application to refer his matter straight to the Federal Court as provided under section 84 of the Courts of Judicature Act.
She said there was no ambiguity in interpreting Articles 5(1), 8 and 9 as these provisions had been decided in the cases of Pua and Loh.
Azizah said Zunar’s counsel had raised the validity of Loh’s case in light of Article 121.
“I am of the considered opinion that Article 121 is not an issue in the substantive application but was only raised in order to question the validity of Loh’s case,” she said.
She said the constitutional issue did not arise from the substantive application.
Zunar’s lawyer Gopal Sri Ram had submitted that Loh’s ruling was invalid as the apex court lacked jurisdiction to make a decision on an observation made by a High Court.
Sri Ram said under Articles 121 and 128, the apex court only had the authority to hear appeals from the lower court.
The then High Court judge Gun Chit Tuan dismissed Loh’s application that the government was liable for a delay in issuing him his travel document.
However, the government appealed against the observation made by Gun that the right to travel was a fundamental right under Article 5.
The Federal Court, however, ruled otherwise.
Zunar, whose real name is Zulkiflee SM Anwar Haque, filed the application last year, seeking to quash the ban.
He also sought several declarations, including that the ban violated his constitutional rights.
Zunar was barred from going to a forum in Singapore on Oct 17 last year.
He also faces nine sedition charges for allegedly insulting the judiciary over PKR de facto head Anwar Ibrahim’s ‘Sodomy 2’ conviction.
Zunar said he had instructed his lawyers to appeal the ruling.
“I am not surprised because I had expected the outcome,” he said, adding that he was still on the ban list unlike Pua and Bersih 2.0 chairman Maria Chin Abdullah.