Traveling Overseas: Right or Privilege?
A citizen’s right or privilege to travel overseas has been subjected to much debate recently.
There are two sides to the coin in this – on one hand, this is said to be a right guaranteed under the Federal Constitution i.e. the Government cannot interfere or bar a person from leaving the country. On the other hand, it is argued that this is a privilege i.e. the Government may, if it wants to, bar a person from leaving the country.
The highest court of the land, the Federal Court, had, on several occasions expressed some views on this.
Government Of Malaysia & Ors v Loh Wai Kong  2 MLJ 33
In this case, Mr. L was charged with a criminal charge. His passport was surrendered to the Court as a condition of bail. He was also a permanent resident of Australia.
His passport then expired. He applied for a new passport. The Immigration Department refused to do so, on the ground that the issue of a passport is the prerogative of the Yang Dipertuan Agong. At the hearing however, the Immigration Department 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.
The Federal Court has these to say:
“…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.
As already stated, by issuing a passport to a citizen, the Minister of Home Affairs vouches for 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….”
In short, while the Government has a right to bar a person from leaving the country, the Government should act fairly and in good faith.
Lee Kwan Woh v Public Prosecutor  5 MLJ 301
It is noteworthy that this case does not concern the issue of leaving the country or a passport. However, the Federal Court mentioned in passing that:
“…When art 5(1) is read prismatically and in the light of art 8(1), the concepts of 'life' and 'personal liberty' housed in the former are found to contain in them other rights. Thus, 'life' means more than mere animal existence and includes such rights as livelihood and the quality of life (see Tan Tek Seng's case). And 'personal liberty' includes other rights such as the right to travel abroad. See Loh Wai Kong v Government of Malaysia  2 MLJ 175, where Gunn Chit Tuan J said that 'personal liberty' includes 'liberty to a person not only in the sense of not being incarcerated or restricted to live in any portion of the country but also includes the right to cross the frontiers in order to enter or leave the country when one so desires'…”
Majlis Agama Islam Wilayah Persekutuan v Victoria Jayaseele Martin and another appeal  2 MLJ 309
This is a case decided very recently, 24th March 2016 to be exact. The Federal Court again mentioned in passing that:
“…Lord Suffian LP, on the other hand, in Government of Malaysia & Ors v Loh Wai Kong  2 MLJ 33, when discussing the issue at hand, stated that art 5 speaks of personal liberty and not of liberty simpliciter. This article only relates to the person or body of the individual. Personal liberty was held not to include certain rights, like right of travel or right to passport. The respondent there had argued that the refusal or delay in granting him a passport violated his right of personal liberty under art 5….”
What can we learn from these cases?
In Malaysia, the principle of stare decisis applies in governing the law. Stare decisis in simple term means a court must follow the decision of the court higher than it.
Looking at the cases cited above, it would appear that there are two different views of the Federal Court.
But that is not so.
A lower court is only bound to follow the reasoning behind the actual decision of the courts higher than it. Opinions that do not affect the actual decision are not binding on the lower court, though the lower court should give weight to such opinion.
To actualize this, let’s say, Mr. A is barred from leaving the country today. He goes to High Court and sues the Government. All things being equal, the High Court will probably follow the decision in Loh Wai Kong and rule that the Government has the right to do so.
What are the Remedies Available to A Person Barred from Leaving the Country?
Let’s go back to Mr. A.
When Mr. A goes to Court, he may have a few things to argue. Let’s assume he proceeds to argue on these two things:
1) The Government has no right to bar him from leaving the country.
2) The Government has not acted reasonably, fairly or in good faith in barring him from leaving the country.
Earlier, we said that the High Court probably rules that the Government has a right to bar Mr. A from leaving the country. However, the High Court will then go on and examine if the Government has acted reasonably, fairly and in good faith in barring Mr. A.
Now, let’s say either party disagrees with the decision of the High Court, and appeals all the way to the Federal Court.
Assuming all the procedural hurdles are passed, the Federal Court, when it hears the appeal on merits, may overrule its own decision in Loh Wai Kong, and hold that the Government does not in fact has a right to bar a citizen from leaving the country. Or it may reaffirm its own decision in Loh Wai Kong.
As it stands now, it appears that traveling overseas is a privilege and not a right. However, the Government in barring a person from traveling overseas must still show that it has acted fairly and in good faith.