Freedom of Movement: Case Reviews in the Court of Appeal

Abstract

The Reid Commission, which framed the initial draft of the constitution, provided strong constitutional safeguards for basic fundamental liberties and rights such as personal liberty; equality of citizenship; freedom of movement, speech, assembly and association; freedom of religion and rights in respect of education and private property. This case review will focus more on the freedom of movement under article 9 of the Federal Constitution. In general, freedom of movement refers to the right of people to circulate or move freely without restrictions across the surface of the world. However, article 9 of the Federal Constitution drew little controversy such as there are some states has special position provided under article 9 of the Federal Constitution.

Keywords: Fundamental liberties, federal constitution, freedom of movement, right, restrictions.

Introduction

Case Review 1 in the Court of Appeal:

Ambiga a/p Sreenevasan v Director of Immigration, Sabah, Noor Alam Khan bin A Wahid Khan & Ors [2017] MLJU 770.

Facts of the Case:

On 25.11.2014, the appellant intended to travel to Sabah to speak at a forum. It was organised by a people’s movement advocating national unity. On 11.11.2014, the appellant wrote a letter to the first respondent to obtain confirmation that there would be no restriction for her to enter Sabah. On 14.11.2014, the first respondent replied that the appellant’s application had been referred to the State Authority and was rejected. The appellant alleged that her sole purpose of her intended trip to Sabah was to participate in the Kota Kinabalu forum, while the other speakers of Kota Kinabalu forum from West Malaysia were allowed to enter Sabah. In the past she had entered Sabah without objection from the Sabah State Authority. On 3.12.2014, the appellant wrote a letter to the first respondent asking for the reasons why she was barred from entering Sabah even she had produced her IC following the specific procedure to enter Sabah, but no reply from him. Thus, the appellant filed an application for judicial review to seek the reliefs of an order to certiorari to quash the Notice of Refusal of Entry into Sabah, an order of mandamus to compel the respondents to allow the appellant entry into Sabah, damages, costs and further relief as deemed fit and proper. The High Court held that the ouster clause in section 59A of the Immigration Act 1959/63 (“Act 155”) meant that the courts had no grounds for judicial review of the Sabah government’s decision except on grounds of procedural non-compliance of the requirements of the Act and the focus of the Court was to consider the decision – making process, and not whether the impugned decision was fair and reasonable. Dissatisfied with the High Court’s decision, Ambiga appealed to this court.

Constitutional Issues:

1. Whether the Notice of Refusal of Entry from the Sabah State Authority to the appellant is valid?
2. Is there any limitation on rights of movement under article 9 of Federal Constitution?

Contentions of the Parties:

The nub of the appellant’s submission was that the learned JC erred in relying in the case of Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan [2002] MLJ 72 (“Sugumar’s Case”) that the decision of the State Authority was non-justiciable where the court is not bound by ouster clauses if there is error of law. It can be seen in Syarikat Kenderaan Melayu Kelantan Bhd v Transport Workers Union [1995] 2 MLJ 317 where the Court of Appeal did not follow the Privy Council’s decision in Anismini Ltd v Foreign Compensation Commission [1968] UKHL 6 on the ground that the Bourd had failed to truly appreciate the effect of the earlier House of Lords decision in Anisminic that had jettisoned the esoteric and obsolete distinction between errors of laws that went to jurisdiction and error of laws that did not. Besides, the appellant contended that the respondents had breached her fundamental liberties as they failed to issue her the substantive grounds/fairness.

The respondents argued that the provisions of sections 59, 59A, 65, 66 and 67 of Act 155 are very clear. Thus, it is necessary for this court to give effect to those provisions without attempting to modify and qualify them, particularly where there is no ambiguity.

Judgment:

The court ruled that the matter of immigration cannot be reviewed based on the decision of a Federal Court case – Sugumar’s Case. In Sugumar’s Case, fundamental liberty under article 9(2) of the Federal Constitution gives the right to move freely throughout Malaysia and to reside any part thereof. However, these rights are subject to clause 3 of the article which according to Andrew Harding’s Law, Government and Constitution in Malaysia clearly refers to Sabah and Sarawak, both of which enjoy such special position. The purpose of the qualification is to ensure that constitutional challenges cannot be brought against these States in respect of the use of their special immigration powers, which may be used to control entry from Peninsular Malaysia. The court agreed that the persons who affected by administrative decisions have a right to know the reasons on which they are based, but the common law duty to give reasons has not found favour in most commonwealth jurisdictions which was outlined by Sedley J in R v Higher Education Funding Council, ex p Institute of Dental Surgery [1994] 1 All E R 651 at; 665 and restated in 2003 in R V (Asha Foundation) v the Millenium Commission [2002] EWHC 916. Thus, Ambiga failed to challenge the Director of Immigration, Sabah and others upon her barred to enter Sabah.

Relevant Constitutional Law Principle(s):

Fundamental liberties are provided in the Federal Constitution, but the Federal Constitution on the other hand provides that Parliament, pursuant to Part IX under article 149, may in certain circumstances pass laws that may be inconsistent with articles 5, 9 or 10 of the Federal Constitution (fundamental liberties). The provisions of sections 59, 59A, 65, 66 and 67 in Act 155 are very clear that it may inconsistent to article 9(2) which gives the citizen the right to move freely throughout the Federation and to reside in any part that subject to any law relating to the security, public order, public health and punishment of offenders but subject to clause (3) which gives the special position to Sabah and Sarawak.

Commentary (Your own view/comment on the judgment):

In my opinion, this case illustrated the special position of Sabah and Sarawak in enjoying their right, where Parliament may by law impose restrictions in respect of movement and residence. Thus, article 9 of the Federal Constitution should be read properly to understand that freedom of movement is not absolute to all citizen. There are states in Malaysia that have their own laws and regulations to control the entry of citizens from Peninsular Malaysia to their states. Based on this case, Sabah State Authority has the power to deny Ambiga from entering Sabah without any duty to inform her the reasons why she was not allowed to enter Sabah.

Case Review 2 in the Court of Appeal:

Pua Kiam Wee v Ketua Pengarah Imigresen Malaysia & Anor [2017] MLJU 902

Case Review 3 in Federal Court:

Muhamad Juzaili bin Mohd Khamis & Others v State Government of Negeri Sembilan & Others [2014] MLJU 1063

Facts of the case

Three individual had been convicted on the offence of expressive conduct of cross dressing. All of the is male but expressly dressing as woman in public. They appealed the case and sought declaration from the court Section 66 of the Syariah Criminal Enactment of 1992 was unconstitutional and invalidate their right. They argue whether section 66 of the enactment consistent with fundamental rights under arts. 5(1), 8(1), (2), 9(2) & 10(1)(a) of the Federal Constitution. All of them were diagnosed as Gender Identity Disorder. They argue that they have special right as they are different from the others. They are being diagnosed and was confirmed by a psychiatrist and a psychologist.

Constitutional Issues

The issue is whether the act of State Government of Negeri Sembilan arresting the were deprivation of their right under article 5(1), 8(1), (2), 9(2) & 10(1)(a) of the Federal Constitution. They also sought declaration for the validity of section 66 of Syariah Criminal (Negeri Sembilan) Enactment 1992. They sought the declaration whether the section make exception for those who diagnosed with GID and also whether it is consistent with the articles enshrined in Federal constitution.

The contention of the parties

Juzaili and others contended that section 66 of Syariah Criminal (Negeri Sembilan) Enactment 1992 were depriving their constitutional right.

Judgment

The court, in allowing the appeal by the appellants, held that section 66 of the Enactment is inconsistent with article 5(1) as it deprived the appellant’s right to live. Section 66 did not consider the existence of the GID sufferers. It is considered as degrading the person with GID in society. As it ignored the GID sufferers such as appellants, they were unfairly subject them to the enforcement of law. As the law is contradicted with the Federal Constitution, hence, it is void.

Relevant Constitutional Law

• Federal Constitution, arts. 3(1), (4), 4(1), 5(1), 6, 7, 8(1), (2), (5)(a), 9(2), 10(1)(a), (2)(a), 11, 12, 13, 74(2), (3)
• Penal Code, s. 84
• Syariah Criminal (Negeri Sembilan) Enactment 1992 , ss. 11, 66
• Constitution of India [India], arts. 8(1), 14, 15, 19(1)(a), 21

Personal Opinion

In deciding a case of law, the judges need to be very careful with the judgement that will be made. In the doctrine of stare decisis, the judge in the future will follow the decision of the decided case. In this case, the judge had made a decision which declared section 66 of Syariah Criminal (Negeri Sembilan) Enactment 1992 as void. The judge need to put the appellants in special treatment for their deceased instead of granting them the right to wear opposite sex attire in the public. This will open the opportunity to others to do the same thing and spread the bad culture in our country.

Case Review 4 in the Federal Court:

Government of Malaysia & Ors V Loh Wai KONG [1979] 2 MLJ 33.

Mr. Loh Wai Kong was a student in Australia and married in January 1966. On April 1975, he left Australia to come back home and, because he had been granted a Resident Visa entitling him to live permanently in Australia, his Malaysian passport was endorsed by the Australian Government with an Authority to Return valid for three years from that date. On 2 August 1976, he was charged in court in Ipoh with criminal offences. His passport was surrendered to court as a condition of bail. On 2 March 1977, his passport expired and on 9 June that year it was returned to him at his request. The respondent had applied for an order directing the appellants to issue a Malaysian passport to him. He argued that he had a fundamental right to travel abroad and that the refusal to issue his passport violated this right. The learned Judge rejected the application but in the course of the judgment made certain observations on the law to which the appellants took objection. He held in effect that the refusal or delay in granting a passport was tantamount to preventing the appellant from leaving the country and was in violation of his right of personal liberty under article 5(1) of the Federal Constitution. Then, the appellants appealed and the respondent cross-appealed.

In this case, the issue is whether the refusal of Immigration Department in granting a passport to the respondent was in violation of his right of personal liberty under article 5(1) and 9(2) of the Federal Constitution.

On behalf of the respondent, he contended that he had a fundamental right to travel abroad and the refusal of a passport violated this right under article 5(1) and 9(2) of the Federal Constitution.

On behalf of the Government, it was argued that the right to travel overseas was distinct from the right to a passport. He conceded that the citizen did not have an absolute right to a passport; that for instance a person of bad character might be denied a passport; that even a passport holder had no right to travel abroad, if, for instance, he had not paid his income tax, or he was a drug trafficker or there were security reasons for not allowing him to go abroad. He also conceded that article 5 of the Federal Constitution was meant for people wrongfully detained. So, if a citizen was of good character and was not likely to bring the country into disrepute, he had a qualified right to travel overseas.

The court held that a citizen has no fundamental right to leave the country and travel abroad, and it can be said that he does not have a right, not even a qualified right, to a passport, though the court further added that in his view, though the citizen does not have a right under Federal Constitution and the law to a passport, the Government should act fairly and bona fide when considering applications for a new passport or for the renewal of a passport and should, like Government in the United Kingdom, rarely refuse to grant them. Then, the government has a discretion whether to issue or not to issue, delay the issue of or withdraw a passport, for instance if criminal charges are pending against the applicant. The exercise of this discretion is subject to review by a court of law, as in the case of other discretionary powers. While article 9 of the Federal Constitution expressly gives the citizen, subject to the limitations set out therein, freedom to move freely within the country and to reside anywhere in it, it is silent as to the citizen’s right to leave the country, travel overseas and have a passport for that purpose, and accordingly, the citizen has no constitutional right to leave the country and travel overseas. The appeal was accordingly allowed and cross-appeal dismissed.

From my point of view, I am agreed with the judgment from the court in this case because if the article 5(1) and 9(2) of the Federal Constitution is widely construed until it provides the right to travel abroad, it can cause many threats to our country and others as the criminal can move freely in and out of the border of countries. In fact, this will be a way to the criminal to escape from the conviction of the criminal law.

Case Review 5:

Manoharan Malayalam & Anor v Dato’ Seri Hj Mohd Najib bin Tun Abdul Razak & Ors.

In this case, the first and second Plaintiff together with three others were Hindraf detainees. They were all detained under the Internal Security Act, 1960 (ISA) pursuant to a Detention Order dated 13.7.2007 under section 8(1) of the ISA. Their detention at Kamunting Detention Camp was for 2 years. On 9.5.2009, the first and second Plaintiffs were released after being served with a Suspension Detention Order dated 8.5.2009 pursuant to section 10 of the ISA. The said Suspension of Detention Order was issued without any grounds being provided, but various conditions and restrictions were imposed on the Plaintiffs. However, on 24.7.2009, the second Plaintiff was given a Revocation Order, and this was followed by another Revocation Order dated 30.9.2009 given to the first Plaintiff. When the first Defendant became the Prime Minister on 3.4.2009, he released two of the five Hindraf detainees, excluding the Plaintiffs. Due to the detention, the Plaintiffs filed various applications for a writ of habeas corpus on various grounds. The High Court had, in all these cases, determined that the detention of the Plaintiffs was lawful and the applications for a writ of habeas corpus were accordingly dismissed. The decisions of the High Court were affirmed on appeals to the Federal Court.

In this appeal, the plaintiff also had claimed from the Defendants sum of RM100 million each in general damages and special damages for wrongful arrest, detention, restriction and revocation and stated that they had been wrongly detained. The constitutional issues in the appeal are whether the principle of res judicata applies to the Plaintiffs’ claim and the second issue arise here is whether all the issues in the claim have been determined and decided by the court in the habeas corpus applications.

The contention of the parties on behalf of the plaintiff is the restrictions imposed in the Detention Order restrict the freedom of movement of the Plaintiffs and thus in breach of Article 9 of the Federal Constitution. The Plaintiffs are challenging the Detention Order on non-procedural grounds. The exercise of the discretionary power of the Prime Minister in not considering the release of the Plaintiffs is triable. The plaintiffs also contended that all previous proceedings in Court vide the habeas corpus applications were on the Detention Order of the Plaintiffs. The Suspension of Detention Order and the Revocation Orders were issued after the disposal of the habeas corpus proceedings. The Defendants also did not produce any grounds for issuing the Suspension of the Detention Order but only the restrictions. The Defendants are thus in breach of Article 5 of the Federal Constitution. The Revocation Orders dated 30.09.2009 and 24.07.2009 issued on the first Plaintiff and second Plaintiff respectively, contain no grounds by the Defendants. The Plaintiff thus claimed damages for the unlawful arrest, detention restriction and revocation. All these claims are triable.

However, the respondents contended that in the issue of detention orders had been discussed in the earlier habeas corpus applications and thus had been decided by the court. Under section 8B (1) ISA, any action by the Minister cannot be challenged. The Federal Court has decided that the detention by the Minister was valid. Next, as had been submitted by the Plaintiffs’ counsel, the Defendants failed to see how the Plaintiffs could claim damages on the suspension of the Detention Order. In addition, the Plaintiffs claimed that all previous proceedings in court vide habeas corpus were on the Detention Orders of the Plaintiffs when the Suspension Detention Order issued by the Plaintiffs during those proceedings did not exist then. The Plaintiffs also claimed that the Detention Orders on them contravene Article 9 of the Federal Constitution. Other than that, the Plaintiffs also dispute the allegation by the Respondent that the Plaintiffs are a threat to national security in earlier proceedings vide judicial review. The Plaintiffs went on to say that the Prime Minister’s act of releasing two of the 5 Hindraf detainees was an unlawful exercise of power as he was not the Home Minister at the material time. Thus, the exercise of that discretionary power is triable and if unlawful, clearly entitles the Plaintiffs to damages.

In giving the decision towards the case, the court in a view that that this is a plain and obvious case to be struck out pursuant to Order 18 Rule 19. The court found that, one of the Plaintiffs’ main arguments regarding the Detention Order under section 8(1) of the ISA issued against them, there were other Orders issued by the Minister for Home Affairs Malaysia, against the Plaintiffs which were not the subject matter of the habeas corpus applications filed by the Plaintiffs. In court’s view, the above argument is not a strong argument and it is not open for the Plaintiffs to now challenge the validity of the said orders. This is because the issues relating to the Suspension and Revocation Orders were events which took place after the disposal of the habeas corpus proceedings. In any case, the Plaintiffs did not challenge the validity of the said Orders when they were in force. Moreover, the Suspension of the Detention Order under Section 10 of the said Act and the Revocation of the Suspension of Detention Order under section 8(3) comes from the original Detention Order issued pursuant to section 8(i) of the said Act. The court find that there is no issue of res judicata in the present appeal. Thus, in view of the above, in the circumstances, this is a plain and obvious case to strike out the Plaintiffs’ suit. The court therefore dismiss this appeal, but we make no Order as to costs.

The relevant constitutional law principle(s) regarding this case is Article 5(2) of the Federal Constitution. In this article it is stated that where a person can seek relief from unlawful detention of himself or another person. Meaning that, a person has right to make an application to challenge the validity of arrest which requires a person to be brought to the court to determine the legality of his detention. Other than that, the constitutional law principle involve in this case is in Article 9 of the Federal Constitution. In Article 9(2), it is stated that every citizen has right to move freely throughout the Federation and to reside in any part that subject to any law relating to the security, public order, public health and punishment of offenders.

In my opinion, I agree with the judgment made by the court. The plaintiffs do not have right to challenge the validity of the detention order as the issue of the detention orders had been discussed in the earlier habeas corpus applications and thus had been decided by the court. Under section 8B (1) ISA, any action by the Minister cannot be challenged. The Federal Court has decided that the detention by the Minister was valid thus the plaintiffs did not have right to challenge the court’s decision. The plaintiffs should have challenged the validity said order when they were in force but not after the disposal of the habeas corpus proceedings. The burden of proof lies in the respondent’s responsibility to prove that the legality of the detention and in the High Court, the High court had decided that the detention of the Plaintiffs was lawful and since the issue of wrongful detention had been decided by the High Court and the Federal Court, there cannot be any actionable claim for wrongful detention. Therefore, the Plaintiffs’ claim for wrongful detention becomes unsustainable.

References

1. Federal Constitution
2. Immigration Act 1959/63 (“Act 155”)
3. Internal Security Act, 1960 (ISA)
4. Ambiga a/p Sreenevasan v Director of Immigration, Sabah, Noor Alam Khan bin A Wahid Khan & Ors [2017] MLJU 770
5. Pua Kiam Wee v Ketua Pengarah Imigresen Malaysia & Anor [2017] MLJU 902
6. Muhammad Juzaili bin Mohd Khamis & Others v State Government of Negeri Sembilan & Others [2014] MLJU 1063
7. Government of Malaysia & Ors v Loh Wai Kong [1979] 2 MLJ 33
8. Manoharan Malayalam & Anor v Dato’ Seri Hj Mohd Najib bin Tun Abdul Razak & Ors