www.ipsofactoJ.com/archive/index.htm [1979] Part 4 Case 14 [FCM]    

 


FEDERAL COURT OF MALAYSIA

 

Malaysia

- vs -

Loh

Coram

SUFFIAN LP

RAJA AZLAN SHAH FJ

WAN SULEIMAN FJ

MT CHANG FJ

SYED OTHMAN FJ

13 FEBRUARY 1979


Judgment

Suffian LP

(delivering the judgment of the Court)

  1. Mr. Loh Wai Kong (“applicant” but before us respondent) was a student in Australia and in January 1966 married.

  2. It was important that he should get it and quickly so that with it he could travel to Australia and there show the Australian Government the expired passport stamped with the Authority to Return to Australia, and request them to stamp the new passport also with an Authority to Return — which must be done before 25 April 1978, the date of the expiry of the old Authority.

  3. Our Immigration Department refused to issue the applicant a new passport. The criminal charges were still pending.

  4. There was correspondence between them and the applicant’s solicitors, who eventually were told by letter of 3 February 1978, that the reason for so refusing was because the issue of a passport was within the Royal prerogative of His Majesty the Yang Dipertuan Agung. At the hearing Immigration gave evidence that in fact the application was refused because the applicant was involved in criminal cases and that the Police had asked them to hold on until after the disposal of those cases, that the applicant had been put on the suspect list on 29 June 1976, and that the Police had informed Immigration Headquarters on 23 December 1977.

  5. On 2 March 1978, the applicant by Originating Motion applied to the High Court in Penang for an order directing the Government of Malaysia as first respondent, the Minister of Home Affairs as second respondent, the Head of Immigration, Penang, as third respondent, and the Passport Officer, Penang, as fourth respondent, to issue the applicant a passport.

    He then contended that:

    1. he had a fundamental right to travel abroad, and

    2. the refusal of a passport violated this right.

  6. The learned judge rejected the application but in the course of his judgment made certain observations on the law of which the Government took objection; hence this appeal. There is also a cross-appeal. It is convenient to take both appeal and cross-appeal together.[a]

  7. It was argued on behalf of the Government that:

    1. the learned judge erred in law in holding that the expression “personal liberty” in article 5 of the Constitution included the right of a person, whether a citizen or non-citizen of Malaysia, to enter or leave the country whenever he desired to do so;

    2. the learned judge erred in law and/or in fact in holding that the refusal or withdrawal of a person’s passport should be considered in the light of whether or not there was a violation of the right of personal liberty under article 5;

    3. the learned judge erred in law and in fact in holding that the refusal or delay in granting the applicant a passport was tantamount to preventing him from leaving the country and was a restraint on his person;

    4. the learned judge erred in law and/or in fact in holding that the power to issue or refuse to issue and the power to withdraw a passport was subject to review by a court of law by virtue of s 44(1) of the Specific Relief Act, 1950.

  8. Mr. Jagjit Singh who appeared on behalf of the applicant before us did not advance all the arguments advanced before the learned judge. He said 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 conceded that article 5 was meant for people wrongfully detained; but maintained that 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; that though qualified, this was nevertheless a right; that in deciding whether or not to issue a passport Immigration should exercise their discretion properly. He contended that in this case they had not exercised their discretion at all and that instead they had simply acted at the behest of the Police, and that if Immigration had not said the refusal was in exercise of the Royal prerogative and had instead frankly said that it was because of the pending criminal charges, the applicant would not have taken the Government to court; and that if this court was against the applicant we should make no order as to costs.

  9. Mr. Jagjit Singh did not say, as was said in the written notice of cross-appeal, that the learned judge should have ordered Government to issue the applicant a passport pending the disposal of the criminal proceedings against him.

  10. The first three arguments advanced on behalf of Government involve the construction of article 5 and may be taken together. That article reads:

    (1)

    No person shall be deprived of his life or personal liberty save in accordance with law.

    (2)

    Where complaint is made to a High Court or any judge thereof that a person is being unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him.

    (3)

    Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.

    (4)

    Where a person is arrested and not released he shall without unreasonable delay, and in any case within twenty-four hours (excluding the time of any necessary journey) be produced before a magistrate and shall not be further detained in custody without the magistrate’s authority: Provided that this Clause shall not apply to the arrest or detention of any person under the existing law relating to restricted residence, and all the provisions of this Clause shall be deemed to have been an integral part of this Article as from Merdaka Day.

    (5)

    Clauses (3) and (4) do not apply to an enemy alien.

  11. It is convenient here to reproduce also the words of article 9 which are as follows:

    (1)

    No citizen shall be banished or excluded from the Federation.

    (2)

    Subject to cl (3), and to any law relating to the security of the Federation or any part thereof, public order, public health, or the punishment of offenders, every citizen has the right to move freely throughout the Federation and to reside in any part thereof.

    (3)

    So long as under the Constitution any other State is in a special position as compared with the States of Malaya, Parliament may by law impose restrictions, as between that State and other States, on the rights conferred by cl (2) in respect of movement and residence.

  12. These three arguments raise the following issue: does a citizen have a right to leave the country, to travel overseas, and a right to a passport?

  13. Article 5(1) speaks of personal liberty, not of liberty simpliciter. Does personal liberty include the three liberties? It is well-settled that the meaning of words used in any portion of a statute — and the same principle applies to a constitution — depends on the context in which they are placed, that words used in an Act take their colour from the context in which they appear and that they may be given a wider or more restricted meaning than they ordinarily bear if the context requires it. In the light of this principle, in construing “personal liberty” in article 5(1) one must look at the other clauses of the article, and doing so we are convinced that the article only guarantees a person, citizen or otherwise, except an enemy alien, freedom from being “unlawfully detained”; the right, if he is arrested, to be informed as soon as may be of the grounds of his arrest and to consult and be defended by his own lawyer; the right to be released without undue delay and in any case within 24 hours to be produced before a magistrate; and the right not to be further detained in custody without the magistrate’s authority. It will be observed that these are all rights relating to the person or body of the individual, and do not, in our judgment, include the right to travel overseas and to a passport. Indeed freedom of movement is dealt with specifically in article 9 which, however, only guarantees the citizen (but not the non-citizen) the right to enter Malaysia, and, subject to the special immigration laws applying in Sabah and Sarawak and to other exceptions set out therein, to move freely within the Federation and to reside anywhere therein. With respect, we agree with what Mukherjee J said at page 96 in Gopalan AIR 1950 SC 27:

    In ordinary language, ‘personal liberty’ means liberty relating to or concerning the person or body of the individual, and ‘personal liberty’ in this sense is the antithesis of physical restraint or coercion. According to Dicey, who is an acknowledged authority on the subject, ‘personal liberty’ means a personal right not to be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit of legal justification: vide Dicey on Constitutional Law, 9 Ed pages 207, 208. It is, in my opinion, this negative right of not being subjected to any form of physical restraint or coercion that constitutes the essence of personal liberty.

  14. While the constitution by article 9 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, in our judgment, the citizen has no constitutional right to leave the country and travel overseas. Indeed, as to the latter how can the constitution guarantee a right to be enjoyed outside the jurisdiction? The right to travel to foreign countries does not exist in international law but is governed by treaties, conventions, agreements and usage of different kinds, and it would be presumptuous and futile of our constitution-makers to confer a fundamental right which every foreign country may lawfully reject.

  15. Does a citizen have a fundamental right to leave the country with or without a passport? In our judgment no such right is guaranteed by the constitution and Mr. Jagjit Singh was with respect correct in saying that in certain circumstances the Government has power to stop a citizen (or indeed even a non-citizen) from leaving; certainly when, as in this case, there is a criminal charge pending against him. It is impossible and undesirable to catalogue the other circumstances in which the Government may stop a person from leaving, and each case will have to be considered in the light of its own facts.

  16. As to the right to a passport, what is a passport? In England, it is, according to Lord Alverstone CJ at page 745 in Rex v Brailsford [1905] KB 730 —

      . . . a document issued in the name of the Sovereign on the responsibility of a Minister of the Crown to a named individual, intended to be presented to the Governments of foreign nations and to be used for that individual’s protection as a British subject in foreign countries, and it depends for its validity upon the fact that the Foreign Office in an official document vouches the respectability of the person named.

    Passports have been known and recognized as official documents for more than three centuries, and in the event of war become documents which may be necessary for the protection of the bearer, if the subject of a neutral State, as against the officials of the belligerents, and in time of peace in some countries, as in Russia, they are required to be carried by all travellers.

  17. The nature of a Malaysian passport is the same. It is a document issued in the name of His Majesty the Yang Dipertuan Agung on the responsibility of the Minister of Home Affairs to a named individual, intended to be presented to the Governments of foreign nations and to be used for that individual’s protection as a Malaysian citizen in foreign countries, and it depends for its validity upon the fact that the Minister in an official document vouches the respectability of the person named.

  18. In India, it has been held by the Supreme Court in Satwant Singh Sawhney v D Ramarathnam AIR 1967 SC 1836, 1840, 1843 that the citizen has a right to a passport and to refuse him one violates article 21, which corresponds to our article 5. Three of the judges (the majority led by Subba Rao CJ) held, as accurately summarized in the headnote, that —

    Right to travel abroad is fundamental right. Since there is no law regulating or depriving a person of such a right, refusal to give passport or withdrawal of one given violates Arts 21 and 14. The reasons are:

    (1)

    Theoretical possibility of exit from India for foreign travel is expressly restricted by executive instructions to shipping and airlines companies and by refusal of foreign exchange. An Indian passport is factually a necessary condition for travel abroad and without it no person residing in India can travel outside India. The Indian Government, by refusing a passport to a person residing in India, completely prevents him from travelling abroad.

    (2)

    The expression ‘Personal liberty’ in Art 21 takes in the right of locomotion and to travel abroad, but the right to move throughout the territories of India is not covered by it inasmuch as it is specially provided in Art 19. Under Art 21 no person can be deprived of his right to travel except according to procedure established by law.

    (3)

    The doctrine of equality before the law is necessary corollary to the high concept of the rule of law accepted by Constitution of India. One of the aspects of rule of law is that every executive action, if it is to operate to the prejudice of any person, must be supported by some legislative authority. Secondly, such a law would be void, if it discriminates or enables an authority to discriminate between persons without just classification. What a Legislature could not do, the executive could not obviously do. Arbitrary prevention of a person from travelling abroad will certainly affect him prejudicially. A person may like to go abroad for many reasons. He may like to see the world, to study abroad, to undergo medical treatment, to collaborate in scientific research, to develop his mental horizon in different fields and such others. Executive arbitrariness can prevent one from doing so and permit another to travel merely for pleasure. While in the case of enacted law one knows where he stands, in the case of unchannelled arbitrary discretion, discrimination is writ large on the face of it. Such a discretion patently violates the doctrine of equality, for the difference in the treatment of persons rests solely on the arbitrary selection of the executive. The argument that the said discretionary power of the State is a political or a diplomatic one does not make it any the less an executive power.

  19. The minority of two led by Hidayatullah J, as he then was, held that on the contrary a citizen had no fundamental right to travel abroad and to a passport but that he is only ordinarily entitled to a passport. The minority decision is accurately summarized in the headnote as follows:

    A person is ordinarily entitled to a passport unless, for reasons which can be established to the satisfaction of the court, the passport can be validly refused to him. Since an aggrieved party can always ask for mandamus, if he is treated unfairly, it is not open, by straining the Constitution, to create an absolute and fundamental right to a passport where none exists in the Constitution. There is no doubt a fundamental right to equality in the matter of grant of passport (subject to reasonable classification) but there is no fundamental right to travel abroad or to the grant of passport. A passport is a political document. The solution of a law of passport will not make things better. Even if a law were to be made the position would hardly change because the utmost discretion will have to be allowed to decide upon the worth of an applicant. Where the passport authority is proved to be wrong, mandamus will always set right the matter.

  20. We have already expressed the view that a citizen has no fundamental right to leave the country and travel abroad, and here we would say that in our view he does not have a right, not even a qualified right, to a passport, though we must further add that in our view, though the citizen does not have a right under our constitution and our 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.

  21. As already stated, by issuing a passport to a citizen, the Minister of Home Affairs vouches the respectability of the holder to foreign governments who would be dismayed if they find themselves lumbered with Malaysians who are drug-traffickers and other criminals. It is obvious that before the Minister places in the hands of a citizen a document which pledges the honour of the country, the Government is entitled to scrutinize the credentials of such a person. Since Government pledges its honour, the issue of a passport is, in our judgment, only a privilege which can be exercised with the concurrence of the executive; it is not a right. The executive cannot be compelled to grant a document pledging its honour to any and every person and to vouch for the respectability of every one wishing to go abroad. The Executive has a discretion whether or not to issue a passport.

  22. In this connection it is interesting to note the practice in England. According to Wade and Philips in Constitutional and Administrative Law, 9th Ed, page 416:

    The prerogative power to refuse, withdraw or revoke passports is in practice only exercised in a limited number of situations. A passport may be denied (a) to a person for whom an arrest warrant has been issued in the United Kingdom, (b) to a person who has been repatriated at the public expense, until the debt is paid, and (c) to a 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. Passports may also be denied to certain categories of persons supporting the Smith regime in Rhodesia; such cases are reviewed by an advisory committee.

  23. As regards the question raised by the Government’s fourth ground of appeal, as to whether the Executive’s power to issue or not to issue and the power to withdraw a passport is subject to review by a court of law under s 44(1) of the Specific Relief Act, 1950 — in our judgment when exercising this discretionary power the Executive is expected to behave in the same way as when exercising its other discretionary powers. It must act bona fide, fairly, honestly and honourably, and if it does not, the aggrieved party will probably make a noise in the press, in Parliament and in public. What if he comes to court? If it is established that Government has acted mala fide or has in other ways abused this discretionary power, the court may, in our judgment, review Government’s action and make the appropriate order, and the principles which the court will apply are well-established and may be found in two authoritative books: Administrative Law by Professor HWR Wade, and Judicial Review of Administrative Action by the late Professor de Smith.

  24. To sum up, “personal liberty” in article 5 means liberty relating to or concerning the person or body of the individual; that article does not confer on the citizen a fundamental right to leave the country. On the contrary, the Government may stop a person from leaving the country if, for instance, there are criminal charges pending against him.

  25. Article 5 does not confer on the citizen a fundamental right to travel overseas. Article 5 does not confer on the citizen a right to a passport. The Government has a discretion whether 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 discretionary power is subject to review by a court of law. Only a citizen may apply for a passport.

  26. Only a citizen has the right to enter the country.

  27. The appeal is accordingly allowed and cross-appeal dismissed.

  28. As regards costs here and below, they shall be paid by the applicant. It is unrealistic to think that he had been misled by Immigration’s letter of 3 February 1978. Criminal charges had then been pending against him for 18 months, from as early as 2 August 1976, and he must have known that it was because of these that he had not been given a new passport.


Cases

AK Gopalan v State 1950 AIR 27; Rex v Brailsford [1905] KB 730; Satwant Singh Sawhney v D Ramarathnam 1967 AIR 1836

Legislations

Federal Constitution: Art. 5, Art.9

Passport Act 1966: s.2

Authors and other references

Wade & Philips, Constitutional and Administrative Law, 9th Ed

Professor HWR Wade, Administrative Law

Professor de Smith, Judicial Review of Administrative Action

Representation

BC Lim (Senior Federal Counsel) for the appellants.

Jagjit Singh for the respondent.

Notes:-

[a] Reported here as Loh v Malaysia @www.ipsofactoJ.com/archive/index.htm [1978] Part 4 Case 14 [HCM]


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