Monday, March 6, 2017

Maria's travel ban lifted, lawyer concerned with arbitrary decision

Hafiz Yatim     Published     Updated
The Immigration Department has lifted the overseas travel ban on Bersih 2.0 chairperson Maria Chin Abdullah, but her lawyer has raised concerns over the arbitrariness of the department and the Home Ministry's decision to impose the ban.

Maria's counsel, Gurdial Singh Nijar, told the High Court in Kuala Lumpur today that his client's application is not academic, despite the ban being lifted.

This follows one of the prayers she sought, to restrain the department and the government from issuing the ban arbitrarily.
Gurdial said the Immigration Department issued the ban on Maria sometime on Jan 15 last year, and this was due to her participation in a protest against the Trans-Pacific Partnership Agreement (TPPA) and also for organising another event.

“The fact is permit was given by the Kuala Lumpur City Hall for the TPPA assembly that occurred on Jan 23. Hence, there was no illegal assembly. How can the immigration impose a ban earlier, when the event (TPPA protest) had yet to take place,” he asked.

Gurdial said there was procedural unfairness in the department and government imposing the ban on the grounds of criticism against the government. The department, he added, relied on a circular that a person to whom the government issues a passport cannot bad mouth the government.

Cannot rely on authorities
“What we are saying is that you cannot rely on the authorities to impose a right not to travel abroad. The procedural fairness is not there. This is also against the principal of natural justice, for them to impose the ban, when proper permit was gained for the Jan 23 rally and that Maria was not given the right to be heard on why the ban was imposed,” he said.

He further cited the decision in the the case of Abdul Ghani Haroon (of PKR) in the High Court in Shah Alam in 2001.

“In that case, Justice Mohd Hishamudin Mohd Yunus (now retired Court of Appeal judge) issued a restraining order to the police to not re-arrest Abdul Ghani. Hence, the court can make such orders (restrain the authorities).”

It was reported that the authorities prohibited the Bersih 2.0 chairperson from going to South Korea to receive the Gwanju Human Rights Prize on behalf of the electoral watchdog on May 15 last year.

Following that, Maria filed the judicial review application, where she named the director-general of Immigration and the Home Ministry as respondents.

Besides seeking the removal of the ban, Maria is also seeking a declaration that the travel ban is against her constitutional right regarding liberty of a person (Article 5 of the Federal Constitution), equality (Article 8) and Article 10(1)(a) regarding freedom of speech and expression and hence, the travel ban is unconstitutional and should be declared null and void.

She also sought a declaration that the two respondents acted beyond their jurisdiction and they have unfettered discretion to arrive at a decision in dispute.

The travel ban was lifted on Maria on May 17, two days after the South Korean award was given and the government lawyers only informed her lawyers of this last week, when submissions were filed.

This led to Gurdial raising the curious nature of the lifting of the ban in court, as leave was granted for Maria to challenge the order last October.

“Why does it take the government almost three quarters of a year to tell the other party that the ban is lifted?" he asked.

On the constitutional point, the lawyer, who was formerly an academician, said although Section 59 and Section 59A of the Immigration Act 1959/63 state the exclusion of the right to be heard and also exclusion of judicial review, the travel ban had violated Maria's constitutional right.

He cited Article 4(1) of the Federal Constitution that any law after the commencement of Merdeka shall be void if it is inconsistent with the constitution. Here, Gurdial said, the Immigration Act came two or six years' after independence and it must be ruled as void.

Passport is a privilege
Meanwhile, senior federal counsel Shamsul Bolhassan told the court that a passport does not give the person a right to travel overseas, but that it is a privilege.

“Personal liberty does not confer the personal right to leave the country to travel overseas; it is not a form of discrimination if one (who possesses a) passport is not allowed to travel overseas,” he said.
Shamsul also cited Sections 59 and 59A of the Immigration Act, where decisions by the department cannot be challenged by judicial review.
He also said that the government had also introduced a system where a person can check with the department before he or she travels out of the country.

The government lawyer also cited the Federal Court decision which states personal liberty in Article 5 means liberty relating to a person or individual.

“That article does not confer on the citizen a fundamental right to leave the country,” Shamsul said, adding that Maria's application now is considered academic.

Justice Nik Hasmat Nik Mohamad said she will deliver her decision on April 27.

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