Is There A Constitutional Right To Travel Abroad?

The recent action by the Immigration Department revoking the passports of Alvin Tan and Ali Abdul Jalil has generated an interesting discussion on whether the relevant authorities have power under the law to take this action. This raises the related question of whether citizens of Malaysia have a “right to a passport” or even a “right to travel abroad”. This discussion involves two important cases decided by the Federal Court: Lee Kwan Woh v Public Prosecutor [2009] 5 MLJ 301 and Loh Wai Kong v Government of Malaysia [1978] 2 MLJ 175, the latter being a unanimous decision of a Federal Court coram including Suffian LP and the late Raja Azlan Shah FCJ (as His Royal Highness then was).

Recent media reports appear to have focused on Lee Kwan Woh as supposedly having decided that the Immigration Department lacks the legal authority to take this action. In fact, the position is not so clear. Directly contradicting the earlier finding of the unanimous Federal Court in Loh Wai Kong, Gopal Sri Ram FCJ ruled in Lee Kwan Woh is that the constitutional right to “personal liberty” guaranteed under Article 5(1) includes “the right to travel abroad” (para 14). There is however no authority cited for this proposition other than the dicta of the learned High Court judge, Gunn Chit Tuan J in Loh Wai Kong, which was subsequently overruled specifically on that point by the Federal Court. English case law also does not support this proposition, as the grant of passports there is a discretionary exercise of the Royal Prerogative. Although this exercise of discretion is reviewable by the courts on ordinary administrative law principles, there is no such thing as an entitlement to a passport as of right; see for eg. R v Secretary of State for Foreign and Commonwealth Affairs ex parte Everett [1989] QB 81, and the British Government’s statement here.

Much also seems to have been made of Gopal Sri Ram FCJ calling (at para 7 of Lee Kwan Woh) the earlier Federal Court decision “worthless as precedent”. This somewhat curiously damning proclamation of an earlier apex court decision appears to be founded solely on His Lordship’s view that the Federal Court should not have entertained the appeal by the Government in Loh Wai Kong. With all due respect, this itself is a controversial claim and only one pre-Merdeka UK Court of Appeal case – Lake v Lake [1955] P 336 – is cited as authority. On the facts of Loh Wai Kong, nothing in the Courts of Judicature Act 1964 or the Federal Constitution provisions on the appellate courts appears to support this view.

Furthermore, the remarks on the right to a passport in Lee Kwan Woh are clearly obiter dicta as that case was not about the right to travel abroad in the first place and the Court was elaborating on what it took to be the full “prismatic” interpretation of Article 5(1), whereas in Loh Wai Kong it was the central issue at stake and therefore the Court’s decision constitutes ratio decidendi.

I do not intend this to be a comment on the propriety or otherwise of the decisions to revoke passports in Alvin Tan and Ali Abdul Jalil’s specific case, but readers of comments in the media should be careful not to be misled into thinking that the Constitution gives more ‘rights’ or entitlements than it actually does. It is also worth noting that the grant and revocation of passports, as an exercise of prerogative power, is an entirely distinct issue from that of citizenship and the right of citizens not to be banished from the Federation under Article 9(1) of the Constitution.





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Wilson is currently a PhD candidate at the Faculty of Law, National University of Singapore, working in the area of Malaysian constitutional law. Previously, he taught constitutional and administrative law at Taylor’s University. Called to the Bar in 2012 but has since opted for teaching and further research into ‘the supreme law of the Federation’ instead.

Posted on 12 December 2014. You can follow any responses to this entry through the RSS 2.0.

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