Travel ban imposed on Maria Chin within permissible grounds

Senior Federal Counsel Shamsul Bolhassan, who appeared for the Home Minister and Immigration director-general (DG), in his argument to Maria’s lawyer’s Datuk Gurdial Singh Nijar’s submissions in the appeal proceedings, said:

“The Immigration DG had deposed that the ground for the blacklisting was that the appellant had ridiculed the government at different forum and illegal assembly.”

Referring to case-law in Government of Malaysia and Ors v Loh Wai Kong, Shamsul said the Federal Court had decided in that case that personal liberty in Article 5 of the Federal Constitution does not confer on the citizen a fundamental right to travel overseas.

In that case, he said it was held that the government may stop a person from leaving the country.

Maria was barred from travelling to South Korea on May 15, 2016, to receive an award for Bersih 2.0. However, the travel ban was lifted two days later. She then filed a judicial review to challenge the Immigration DG’s decision to bar her from travelling. She lost her case in the High Court and Court of Appeal.

On Feb 19, 2019, the Federal Court granted Maria a leave to appeal.

In his submissions earlier, Gurdial Singh submitted that the Home Minister and the Immigration DG cannot rely on general provisions in the Immigration Act to justify the travel ban on Maria Chin Abdullah to infringe her fundamental rights to free speech and expression.

He said by relying on a departmental internal circular to prevent the Petaling Jaya Member of Parliament (Maria) from going overseas in 2016, the respondents (Home Minister and Immigration DG) had restricted her freedom of speech and assembly enshrined under Article 10 (1) of the Federal Constitution.

“The respondents justified the travel ban on grounds that the appellant (Maria) was slated to speak in the People's Movement Forum and had organised the Anti-Trans-Pacific Partnership Agreement assembly (Anti-TPPA Assembly),” he said.

The lawyer said Section 3(2) or Section 4 of the Immigration Act 1959 does not confer the power to the Immigration DG to impose a travel ban or to issue a circular that carried with it the force of law, while Article 10 (2) of the Federal Constitution states only Parliament and not the Executive may restrict the freedom of speech and assembly.

He also submitted that the exclusive right of Parliament to impose restrictions on free speech and expression, however, is only valid if it falls under the permissible restrictions such as public order or morality or in the interest of the security of the Federation.

Although the travel ban had been lifted on Maria, she should not be left without a remedy, the lawyer said, adding that she should be awarded monetary compensation in the light of constitutional violation committed by the respondents.

Gurdial Singh was submitting before the Federal Court seven-member bench in the appeal brought by Maria, who was a former Bersih 2.0 chairman, against a travel ban imposed on her.

The bench led by Chief Justice Tan Sri Tengku Maimun Tuan Mat reserved the court's judgment to a date to be fixed.

The other judges presiding were Court of Appeal President Datuk Rohana Yusuf and Federal Court judges Datuk Nallini Pathmanathan, Datuk Abdul Rahman Sebli, Datuk Hasnah Mohammed Hashim, Datuk Mary Lim Thiam Suan and Datuk Harmindar Singh Dhaliwal.