The right to travel abroad is recognized as a fundamental right under Article 5(1) of the Federal Constitution, and legislative provisions attempting to restrict this right must comply with constitutional standards.

Abdul Rahman Sebli FCJ (Majority Judgment):

The Facts

[1] The appellant was the chairperson of a non-Governmental organisation (NGO) known as "Bersih 2.0" and was a holder of a valid Malaysian passport. On 15 May 2016, after collecting her boarding pass at the Kuala Lumpur International Airport for a flight to South Korea, she was stopped by the immigration authorities and was told that there was a travel ban imposed on her and that she could not leave the country.

[2] No reason was given to the appellant for the travel ban, before or after the incident. The reason was only disclosed in the 1st respondents affidavit filed in response to the present judicial review proceedings commenced by the appellant in the High Court on 28 July 2016.

[3] In gist, it was deposed to in the affidavit that on the 1st respondents instruction, the appellant was blacklisted from leaving the country for a period of up to three years starting from 6 January 2016. The instruction was made pursuant to a circular titled Pekeliling Imigresen Malaysia Terhad Bil 3 Tahun 2015. The ground for the blacklisting was that the appellant had disparaged the Government of Malaysia ("Memburukkan Kerajaan Malaysia") at different forums and illegal assemblies.

[4] The blacklisting and travel ban were however lifted by the respondents on 17 May 2016, ie two days after she was stopped at the Kuala Lumpur International Airport.

The Complaint

[5] According to the appellant, the facts as shown in the affidavit of the 1st respondent referred to events that had yet to occur when the travel ban was imposed. This, according to counsel, implies an admission that at the time the ban was imposed there was no real reason for its imposition and yet the respondents relied on s 59A of the Immigration Act 1959/63 ("the Immigration Act") to say that even where there are no real reasons to justify the ban, their decision must be accepted and condoned by the Court regardless and this begs the question: to whom will the citizen then turn when there is a contestation between the executive and the citizenry?

[6] It is the appellants case that the inevitable consequence of the appellants travel ban was to interfere with her freedom of speech guaranteed by art 10(1) of the Federal Constitution, in particular her freedom to speak at an event in South Korea to receive a human rights prize in her capacity as a member of an NGO.

[7] On 28 July 2016, the appellant filed an application to judicially review the impugned decision on inter alia the following grounds; that the impugned decision is baseless, unreasonable, irrational and completely unfair; and that the 1st and/or 2nd respondent erred in law when they:

i. Acted ultra vires and in excess of jurisdiction because there is no provision under the Immigration Act and/or other relevant statutes to bar a citizen from travelling overseas in similar circumstances;

ii. Acted in breach of her fundamental right to travel abroad which right stems from the right to life under art 5(1) of the Federal Constitution;

iii. Acted in violation of her legitimate expectation to travel abroad due to the fact that at all material times, she possessed a valid passport and was never once informed at a reasonable period beforehand that she was going to be barred from travelling overseas;

iv. Acted in breach of the principles of natural justice as guaranteed by the Federal Constitution and established principles of administrative law in arriving at the impugned decision without according her the right to be heard and/or opportunity to be consulted;

v. Acted in breach of the requirements of procedural fairness when they failed to provide her with any grounds and/or reasons for the impugned decision and/or failed to respond at all to her reasonable query;

vi. Failed to take into account the relevant consideration that she was travelling to South Korea to attend a human rights conference and receive a prestigious and internationally recognised award on behalf of a Malaysian