Judicial review is an essential constitutional feature ensuring executive actions conform to the Federal Constitution, thereby safeguarding fundamental rights against unlawful restrictions.

Nallini Pathmanathan FCJ:

JUDGMENT

Introduction

[1]For the full comprehension of the people of this nation, the net effect of the judgment of the majority of this Court is that:

a)In this day and age, namely the 21^st century, the right to travel outside of Malaysia is not a fundamental liberty under art 5 of the Federal Constitution, even if you have a valid passport – it is only a privilege;

b)A person can be prohibited from travelling outside of Malaysia by the Director-General of Immigration by a law which is merely procedurally correct, without regard to its constitutional validity;

c)A decision to prohibit any person from travelling outside of Malaysia is imposed at the discretion of the Executive;

d)That decision of the Executive to prohibit or ban the citizen from travelling outside of Malaysia cannot be judicially scrutinized or reviewed by the superior Courts;

e)The law on which the decision was based is also immune from judicial scrutiny as to its constitutionality, because Parliament is entitled to legislate as it thinks fit;

f)When any person is prohibited from travelling, he cannot object or be heard on the issue of why the decision to prohibit him from travelling outside of Malaysia is wrong, or why he ought to be allowed to travel;

g)As such the superior Courts are limited in their powers of review. They may only administratively review statutes and acts or omissions of the Legislature and the Executive, but not constitutionally review the same, if Parliament deems so.

[2]That to my mind, and for the reasons articulated by the Chief Justice of Malaysia, is untenable by reason of Art 4(1) FC, which enshrines constitutional supremacy and not Parliamentary supremacy.

[3]This appeal concerns questions relating to basic fundamental liberties. I am entirely in agreement with the illuminating and comprehensive judg ment of the learned Chief Justice Tun Tengku Maimun bin ti Tuan Mat. I write this concurring judgment in support, only because I believe that a multiplicity of views on the approaches to be adopted in construing our Federal Constitution enables a better appreciation of its substance and significance.

[4]More specifically, t he appeal before us involves questions relating to the rights of a citizen to travel abroad, to freedom of expression and the right to be heard , which are fundamental liberties protected under the Federal Constitution. When such basic rights are affected by executive action , premised on statutory provisions precluding or suspending these rights , the Judiciary is constitutionally empowered , under the doctrine of the separation of powers, and more specificall y the Federal Constitution, to review the validity of such acts and provisions.

[5]However, by reason of the Legislature having enacted an ouster clause vide section 59AImmigration Act s 1959/63(‘Immigration Act s’), which seeks to prevent or preclude the Judiciary from carrying out its function and exercising its powers of review under the Federal Constitution , the more fundamental issue of the constitutionality of such an ouster clause needs study and analysis, before the questions above can even be considered by the Judiciary.

The Questions of Law in this Appeal

[6]The background facts have been set out in the learned Chief Justice’s judgment, and I shall not repeat them here.

[7]Neither will I touch on the issue raised by learned Senior Federal Counsel for the Attorney-General’s Chambers that this appeal is academic, save to state again that I concur entirely with the conclusion on that issue as adjudicated by the learned Chief Justice.

[8]I shall focus instead on the questions of law posed in this appeal:

Question 1

Whether section 3(2)Immigration Acts 1959/63empow ers the Director General with unfettered discretion to impose a travel ban? In particular, can the Director General impose a travel ban for reasons that impinge on the democratic rights of citizen s uch as criticizing the Government?

Question 2

Whether section 59Immigration Actsis valid