Thursday, July 30, 2015

Revisiting the freedom of movement in MALAYSIA



WHEN our local mainstream media published news of several individuals being prevented by the Immigration Department from leaving the country last week, I had anticipated an open debate on the issue in the social media.


I was not wrong, although the intensity of the debate so far had been on the low side.


Perhaps that is a good sign. If we consider this issue from its human rights aspect, the position is quite clear. The Universal Declaration of Human Rights (UDHR) states in Article 13 that (1) “Everyone has the right to freedom of movement and residence within the borders of each state”, and (2) “Everyone has the right to leave any country, including his own, and to return to his country”.

Is Malaysia a party to the UDHR? A visit to the official portal of the Attorney-General’s (A-G) Chambers reveals the following information — “Malaysia, by virtue, of being a member of the United Nations has subscribed to the philosophy, concepts and norms provided by the Universal Declaration of Human…”

The portal also confirms that Malaysia is a party to several other conventions but “subject to the provisions of the Malaysian Constitution and the applicable laws and policies”.

The declaratory principles in Article 13 of the UDHR as stated above were subsequently translated into binding treaty obligations when they appeared in Article 12 of the International Covenant on Civil and Political Rights (ICCPR), adopted by the UN General Assembly on Dec 19, 1966.

Malaysia is a party to the ICCPR, as also confirmed in the same official portal of the Attorney-General’s Chambers. Article 12 of ICCPR sets out the following rights of every Malaysian citizen — liberty of movement and freedom to choose his residence; freedom to leave any country, including his own; such rights shall not be subject to any restrictions except those provided by law necessary to protect national security, public order, etc.; and the right to enter his own country.

Restrictions on local movement and foreign travel are, however, a common feature in many jurisdictions. The personal circumstances of individuals (convictions of serious crimes, placed on parole, placed under orders of restricted residences, house arrests, etc.) may limit such rights of movements within the country. Other circumstances (bankruptcy, failure to pay income taxes, failure to pay student loans, not in possession of valid travel documents, etc.) may limit the right to travel overseas.

An accused or a material witness may also be prohibited from travelling abroad. In a child custody dispute, the court may also issue an order restricting the movement of the child, pending a final outcome of the case. If a Malaysian citizen is already in possession of a valid international passport, does it give him an unrestricted right to leave the country at any time?

In many jurisdictions, the answer is “No”. He can still be prohibited from leaving the country for several reasons, such as, if he is under investigation by a competent authority, serving a criminal sentence, defaulted in paying his debts or poses a threat to national security.

In some countries (such as the former Soviet Union), citizens are required to have exit visas to leave the country. Citizens of the Republic of China are required to apply for exit and entry endorsements if they wish to go to Hong Kong and Macau. Sometimes restrictions are placed on leaving that are specific to the intended destination, for example, Malaysian citizens holding valid passports are still not allowed to leave the country to go to Israel.

The events of last week raised the following question. If Malaysian individuals are not convicted criminals, have not been placed under house arrest, have not been declared bankrupts, not owing any money to the Income Tax Department, Employees Provident Fund (EPF) or the National Higher Education Fund Corporation (PTPN), have not been ordered by the court to surrender their passports, etc., can they still be prohibited from leaving the country?

The answer is still “Yes” if they are “material witnesses” in an ongoing investigation or their departure overseas at this point in time is considered “a threat to national security”.

If the prohibition or restriction is later challenged in court by these individuals, the onus is on the Immigration Department (or relevant authority imposing the restrictions) to show to the court cogent proof of the circumstances justifying that prohibition.

A recent news report revealed that, as of January, more than 680,000 people were prohibited from leaving the country — almost half of them (326,533) Malaysians, the rest foreigners. Those “blacklisted” and prohibited from leaving the country include “VIPs and VVIPs”, many of whom were not aware they had been blacklisted.

The highest number of blacklisted individuals came from the Insolvency Department, followed by the Inland Revenue Department, and PTPN.

There are also individuals who had been blacklisted by the Immigration Department (such as for infringing immigration laws), police and the Prisons Department. Other public sector agencies blacklisting individuals include the EPF, Customs, Malaysian Anti-Corruption Commission, Bank Negara and the Securities Commission.

If we examine closely Article 12 of ICCPR, where its third paragraph states: “The above-mentioned rights shall not be subject to any restrictions, except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals …”, the legal position can be summed up as follows:

THERE is freedom of movement within the country;

THERE is a right to travel abroad;

THERE is a right to re-enter the country;

SUCH rights cannot be restricted, except as provided by law;

ANY such law (restricting these rights) must be necessary to protect national security, etc. and,

IF the restrictions are challenged in court by the affected individuals, the relevant authority imposing the restriction must show the circumstances justifying such restrictions.

A revisit of the ICCPR shows that the right of a Malaysian citizen to travel abroad is not absolute, but any restriction imposed must be bona fide for the security and wellbeing of the nation.

The writer Salleh Buang formerly served in the Attorney-General’s Chambers before he left for private practice, the corporate sector and then academia


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