Travel abroad is recognized as a fundamental right under Article 5(1) of the Federal Constitution, and restrictions on such rights require a clear legislative basis.

Tengku Maimun Tuan Mat Chief Justice:

GROUNDS OF JUDGMENT Introduction

[1]This appeal brings to the fore, once again, the sacrosanct doctrine of separation of powers which is an immutable feature of all democratic nations. Tied to the discussion is what some call the trilogy of cases comprising the recent judgments of this Court in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561Semenyih Jaya”), Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals 2018 MarsdenLR 3081 (“Indira Gandhi”) and Alma Nudo Atenza v Public Prosecutor and another appeal 2019 MarsdenLR 73 Alma Nudo”).

Background Facts

[2]The appellant, Maria Chin Abdullah, was to receive the 2016 Gwanju Prize from the South Korean May 18th Memorial Foundation. She was expected to travel to South Korea on 15.5.2016 to receive the prize, and to deliver a speech on the occasion of the ceremony.

[3]On 15.5.2016, the appellant, in her attempt to board flight MH66 to South Korea, was stopped by the immigration authorities at Kuala Lumpur International Airport after she checked in and collected her boarding pass. She was informed by the authorities just before boarding that she was restricted from travelling abroad as a travel ban had been imposed on her. No reasons were communicated to her for the ban either before or after.

Proceedings in the Courts Below

[4]The appellant filed an application for judicial review in the High Court against the Director-General of Immigration as the first respondent and the Minister of Home Affairs as the second respondent, seeking the following prayers:

“

(1)An order of certiorari to quash the decision made by the respondents to blacklist the appellant from travelling overseas, which was brought to the appellant’s attention on the day she was scheduled to leave Malaysia on 15.5.2016 (‘Impugned Decision’);

(2)A declaration that the Impugned Decision made by the respondents to blacklist the appellant from travelling overseas in the circumstances is a breach of Article 5(1), Article 8(1) and/or Article 10(1)(a) of the Federal Constitution and is as a result, unconstitutional and void;

(3)A declaration that the respondents do not have the power to make the Impugned Decision and therefore acted in excess of jurisdiction;

(4)A declaration that the respondents do not have an unfettered discretion to arrive at the Impugned Decision;

(5)A declaration that the respondents cannot act under section 59 of Act 155 to deny the appellant a right to natural justice as this is in violation of the Federal Constitution in particular Article 160 read together with Article 4 of the Federal Constitution and relevant case law;

(6)A declaration that the following provisions of Act 155 are unconstitutional:

(a)section 59 which excludes the right to be heard; and/or

(b)section 59A which excludes judicial review.

(7)An order of prohibition to prevent the respondents from making any subsequent decisions to blacklist the appellant from travelling overseas in similar circumstances; and

(8)In the alternative to (7), an order of prohibition to prevent the respondents from making any subsequent decisions to blacklist the appellant from travelling overseas without furnishing her with reasons and acco