Suffian LP (delivering the judgment of the Court):

Mr. Loh Wai Kong ("applicant" but before us respondent) was a student in Australia and in January 1966 married. On April 1975, he left Australia to come back home and, because he had been granted a Resident Visa entitling him to live permanently in Australia, his Malaysian passport was endorsed by the Australian Government with an Authority to Return valid for three years from that date.

On 2 August 1976, he was charged in Court in Ipoh with criminal offences. His passport was surrendered to Court as a condition of bail.

On 2 March 1977, his passport expired and on 9 June that year it was returned to him at his request. If it was his intention to go overseas, the passport would not have helped, because no airline would accept a passenger without a valid passport.

On a date that is uncertain (but nothing turns on this) he applied for a new passport.

It was important that he should get it and quickly so that with it he could travel to Australia and there show the Australian Government the expired passport stamped with the Authority to Return to Australia, and request them to stamp the new passport also with an Authority to Return - which must be done before 25 April 1978, the date of the expiry of the old Authority.

Our Immigration Department refused to issue the applicant a new passport. The criminal charges were still pending.

There was correspondence between them and the applicant's solicitors, who eventually were told by letter of 3 February 1978, that the reason for so refusing was because the issue of a passport was within the Royal prerogative of His Majesty the Yang Dipertuan Agung. At the hearing Immigration 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, that the applicant had been put on the suspect list on 29 June 1976, and that the Police had informed Immigration Headquarters on 23 December 1977.

On 2 March 1978, the applicant by Originating Motion applied to the High Court in Penang for an order directing the Government of Malaysia as first respondent, the Minister of Home Affairs as second respondent, the Head of Immigration, Penang, as third respondent, and the Passport Officer, Penang, as fourth respondent, to issue the applicant a passport.

He then contended that:

(1) he had a fundamental right to travel abroad, and

(2) the refusal of a passport violated this right.

The learned Judge rejected the application but in the course of his judgment made certain observations on the law of which the Government took objection; hence this appeal. There is also a cross-appeal. It is convenient to take both appeal and cross-appeal together.

It was argued on behalf of the Government that: (1) the learned Judge erred in law in holding that the expression "personal liberty" in art. 5 of the Constitution included the right of a person, whether a citizen or non-citizen of Malaysia, to enter or leave the country whenever he desired to do so;

(2) the learned Judge erred in law and/or in fact in holding that the refusal or withdrawal of a person's passport should be considered in the light of whether or not there was a violation of the right of personal liberty under art. 5;

(3) the learned Judge erred in law and in fact in holding that the refusal or delay in granting the applicant a passport was tantamount to preventing him from leaving the country and was a restraint on his person;

(4) the learned Judge erred in law and/or in fact in holding that the power to issue or refuse to issue and the power to withdraw a passport was subject to review by a Court of law by virtue of s. 44(1) of the Specific Relief Act, 1950.

Mr. Jag-Jit Singh who appeared on behalf of the applicant before us did not advance all the arguments advanced before the learned Judge. He said that the right to travel overseas was distinct from th