The Deputy Home Minister, Nur Jazlan Mohamed, recently said that the issuance of a passport was privilege and not a right. He went on to say that the Immigration Department has the power to bar a citizen from leaving the country if the said person “discredits or ridicules the Government”. As far as the law in Malaysia is concerned, he is partly right.
Right to leave under international law
The right to leave (includes right to a passport and to travel abroad) is well entrenched under international law. It is recognised under, amongst others, Article 13 of the Universal Declaration of Human Rights, Article 12 of the International Covenant on Civil and Political Rights (‘ICCPR’) and Article 10 of the Convention on the Rights of the Child. It is also recognised in most Commonwealth jurisdictions.
Though this right is not absolute, it can only be limited under certain circumstances, i.e. to protect national security, public order, public health or morals, or the rights and freedoms of others (see Samuel Lichtensztejn vs Uruguay, Communication No 77/1980, UN Doc CCPR/C/OP/2 at 102 (1990), Human Right Committee decision).
Is it a recognised right under Malaysian law?
Unfortunately, as the case law stands, it is not a recognised right in Malaysia. This author is of the view that the right to travel abroad should be recognised under Articles 5(1) and 8(1) of the federal constitution. The Federal Court in Government of Malaysia vs Loh Wai Kong  2 MLJ 33 (‘Loh Wai Kong’) rejected this view and decided that the right to travel abroad and leave Malaysia is not a guaranteed right.
The Federal Court in Lee Kwan Woh vs Public Prosecutor  5 MLJ 301 departed from this position when it held, though obiter dicta, that the right to travel abroad forms part of a person’s liberty under Article 5(1) of the federal constitution.
However, the Federal Court very recently in Majlis Agama Islam Wilayah Persekutuan vs Victoria Jayaseele Martin  2 MLJ 309 reverted to its earlier position in Loh Wai Kong.
Are there any fetters on the government’s discretion?
Just like any other exercise of discretion, there are limits placed on the government’s discretion to restrict a person from travelling abroad. As recognised by the Federal Court in Loh Wai Kong, the Government must act bona fide, fairly, honestly and honourably. It cannot act in bad faith or abuse its discretionary power. Such decision is open to challenge in the courts by way of judicial review.
Pertinently, the Federal Court recognised (by citing Wade and Philips in Constitutional and Administrative Law (9th edition) with approval) that there are certain limited circumstances where the government can restrict a person from travelling abroad: (a) a person for whom an arrest warrant has been issued; (b) a person who has been repatriated at the public expense, until the debt is paid; (c) minor in certain circumstances, such as where a journey is known to be contrary to parental wishes; and (d) on grounds of public interest, to a person whose past or present activities are demonstrably undesirable.
Is discrediting or ridiculing the government a valid ground?
It is this author’s view that it is not a valid ground. Every citizen in this country is guaranteed the freedom of expression under Article 10(1)(a) of the federal constitution. This includes the right to criticise the government.
As Lord Keith in Derbyshire County Council vs Tunes Newspapers Ltd  1 All ER 1011 put it, “it is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism”.
This case was cited with approval in two Court of Appeal decisions and in a dissenting Court of Appeal judgment (see the dissenting judgment of David Wong, JCA in Government of State of Sarawak vs Chong Chieng Jen (unreported) for a detailed discussion).
Though the minister explained that reference must be made to the federal constitution to determine if an act or statement ridicules or discredits the government, the said explanation is at odds with reality. Raja Azlan Shah, J (as he then was) in Public Prosecutor vs Ooi Kee Saik  2 MLJ 108 said (on the Sedition Act 1948):
“The dividing line between lawful criticism of government and sedition is this - if upon reading the impugned speech as a whole the court finds that it was intended to be a criticism of government policy or administration with a view to obtain its change or reform, the speech is safe.”
It cannot be gainsaid that Maria Chin Abdullah was pushing for reforms in the country via democratic means. It falls squarely within the judgment of Raja Azlan Shah, J (as he then was) above and her right to freedom of expression. If what she did amounts to ridiculing and discrediting the government, then the said ground is not merely unreasonable and disproportionate, but also unconstitutional.
What’s essentially happening is an effective curtailment of the freedom of expression via non-legislative means. This is not permitted under Article 10(2) of the federal constitution. The restriction of the right to freedom of expression is only permitted by way of legislation. As Raja Azlan Shah, FCJ (as he then was) in Loh Kooi Choon v Government of Malaysia  2 MLJ 187 noted, “as fundamental rights are not the same as ordinary rights, they can only be suspended or abridged in the special manner provided for it in the constitution”.
It is fitting to end this article with the words of Brandeis, J in the US Supreme Court case of Whitney vs California 274 US 357 (1927) (cited with approval by the Court of Appeal in Muhammad Hilman bin Idham & Ors vs Kerajaan Malaysia & Ors  6 MLJ 507)
“Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means... They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government.”
By SURENDRA ANANTH, an advocate and solicitor in the High Court of Malaya.