The Right to Leave the Country and Travel Abroad

The Deputy Home Minister, Datuk Nur Jazlan Mohamed recently said that the issuance of a passport was privilege and not a right. He went on to say that the Immigration Department has the power to bar a citizen from leaving the country if the said person “discredits or ridicules the Government”. As far as the law in Malaysia is concerned, he is partly right.

Right to leave under international law

The right to leave (includes right to a passport and to travel abroad) is well entrenched under international law. It is recognised under, amongst others, Article 13 of the Universal Declaration of Human Rights, Article 12 of the International Covenant on Civil and Political Rights (“ICCPR”) and Article 10 of the Convention on the Rights of the Child. It is also recognised in most Commonwealth jurisdictions. Though this right is not absolute, it can only be limited under certain circumstances, i.e. to protect national security, public order, public health or morals, or the rights and freedoms of others (see Samuel Lichtensztejn v. Uruguay, Communication No. 77/1980, U.N. Doc. CCPR/C/OP/2 at 102 (1990), Human Right Committee decision)

Is it a recognised right under Malaysian law?

Unfortunately, as the case law stands, it is not a recognised right in Malaysia. This author is of the view that the right to travel abroad should be recognised under Articles 5(1) and 8(1) of the Federal Constitution. The Federal Court in Government of Malaysia v Loh Wai Kong [1979] 2 MLJ 33 (“Loh Wai Kong”) rejected this view and decided that the right to travel abroad and leave Malaysia is not a guaranteed right.

The Federal Court in Lee Kwan Woh v Public Prosecutor [2009] 5 MLJ 301 departed from this position when it held, though obiter dicta, that the right to travel abroad forms part of a person’s liberty under Article 5(1) of the Federal Constitution.

However, the Federal Court very recently in Majlis Agama Islam Wilayah Persekutuan v Victoria Jayaseele Martin [2016] 2 MLJ 309 reverted to its earlier position in Loh Wai Kong.

Are there any fetters on the Government’s discretion?

Just like any other exercise of discretion, there are limits placed on the Government’s discretion to restrict a person from travelling abroad. As recognised by the Federal Court in Loh Wai Kong, the Government must act bona fide, fairly, honestly and honourably. It cannot act in bad faith or abuse its discretionary power. Such decision is open to challenge in the courts by way of judicial review. Pertinently, the Federal Court recognised (by citing Wade and Philips in Constitutional and Administrative Law (9^th edition) with approval) that there are certain limited circumstances where the Government can restrict a person from travelling abroad: (a) a person for whom an arrest warrant has been issued; (b) a person who has been repatriated at the public expense, until the debt is paid; (c) minor in certain circumstances, such as where a journey is known to be contrary to parental wishes; and (d) on grounds of public interest, to a person whose past or present activities are demonstrably undesirable.

Is discrediting or ridiculing the Government a valid ground?

It is this author’s view that it is not a valid ground. Every citizen in this country is guaranteed the freedom of expression under Article 10(1)(a) of the Federal Constitution. This includes the right to criticize the Government. As Lord Keith in Derbyshire County Council v Tunes Newspapers Ltd [1993] 1 All ER 1011 put it, “it is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism”. This case was cited with approval in two Court of Appeal decisions and in a dissenting Court of Appeal judgment (see the dissenting judgment of David Wong, JCA in Government of State of Sarawak v Chong Chieng Jen (unreported) for a detailed discussion).

Though the Minister explained that reference must be made to the Federal Constitution to determine if an act or statement ridicules or discredits the government, the said explanation is at odds with reality. Raja Azlan Shah, J (as he then was) in Public Prosecutor v Ooi Kee Saik [1971] 2 MLJ 108 said (on the Sedition Act 1948):

“The dividing line between lawful criticism of Government and sedition is this – if upon reading the impugned speech as a whole the court finds that it was intended to be a criticism of Government policy or administration with a view to obtain its change or reform, the speech is safe.”

It cannot be gainsaid that Maria Chin Abdullah was pushing for reforms in the country via democratic means. It falls squarely within the judgment of Raja Azlan Shah, J (as he then was) above and her right to freedom of expression. If what she did amounts to ridiculing and discrediting the government, then the said ground is not merely unreasonable and disproportionate, but also unconstitutional.

Conclusion

What’s essentially happening is an effective curtailment of the freedom of expression via non-legislative means. This is not permitted under Article 10(2) of the Federal Constitution. The restriction of the right to freedom of expression is only permitted by way of legislation. As Raja Azlan Shah, FCJ (as he then was) in Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187 noted, “as fundamental rights are not the same as ordinary rights, they can only be suspended or abridged in the special manner provided for it in the Constitution”.

It is fitting to end this article with the words of Brandeis, J in the US Supreme Court case of Whitney v California 274 US 357 (1927) (cited with approval by the Court of Appeal in Muhammad Hilman bin Idham & Ors v Kerajaan Malaysia & Ors [2011] 6 MLJ 507)

“Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means… They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government.”

(Malay Mail Online, 19.05.2016)

Tips for Backpacking through Europe

Before I continue writing on cities/towns that I have visited, I think it would be even more helpful to provide some general trips on backpacking and travelling in Europe. Bear in mind that most of these tips only apply if your are backpacking, AKA, travelling cheap. 

1. Travel light - It does not matter if your trip is for 1 month, 2 months or even half a year. 1 week of clothes is more than sufficient. Most hostels have laundry services. Even if they don't, directions to nearby laundry services will be provided. If all else fails, there is always the self-service option. Try and get a washing bag before travelling. This video by Allison Levine is helpful, https://www.youtube.com/watch?v=Ox9jMZyPwB8
2. Pre-booking transport - This is the tricky part. Booking your train, bus, ferry and air tickets within Europe earlier will result in the same being cheaper. For example, I got all my train tickets in Italy at trenitalia for 9.99 euros per person. This included a train from Bari to Rome, a 6 hour ride! My bus and train tickets for other countries were generally cheaper than those who bought tickets in the station. However, if you have a bigger budget, I would recommend getting the Euro-rail pass which allows you to hop on to any train to get to your next destination (with a reservation fee). This injects a great amount of flexibility, which enables spontaneous decisions. You can never get the full picture from online research or even from a friends personal experience. It is only when you are physically there that the true picture unfolds. You might feel like staying on longer or leaving earlier. You might discover places to visit which you never found on the internet. The weather might be bad on the day you planned to hike a mountain. A flexible itinerary caters for such instances, albeit at a larger cost.
3. Overnight travel - Try and catch a night bus/train when travelling from one country to the other. This way, you get to save on accommodation for one night
4. Hostels - Unless you have good couch-surfing options, get a dorm in a hostel! This is where you will make friends and share travel experiences! If you are travelling with your partner and prefer privacy, it is much cheaper to get a private room in a hostel (compared to other accommodation options). Be sure to check reviews before choosing a hostel and try and get one with a decent kitchen.
5. Daily budget (excluding accommodation) - I generally capped my daily expenditure to 30 euros (food, internal transportation, tickets). However, I rarely spent that much in a day. You can easily survive with 5 euros for a meal, even in countries such as France and Italy. For breakfast, get cereal and milk or a loaf of bread and keep them with you. A set of cereal and milk costs about 4 to 5 euros and can easily last you for 3 days. Try and cook your dinner meals. Most hostels should have a decent kitchen. Sandwiches and pasta are cheap cooking options. A pasta meal with some meat will only cost about 3 euros. If you are too lazy to cook, get food from the supermarket. By avoiding the 5 euro cap for a meal, you would also have the luxury of splashing out on one (if not more) good meal in each city.
6. Weather - If you are planning to visit scenic places in which beauty depends on the weather, try not to plan too long ahead. You might end up staring at clouds or mist instead of a beautiful mountain peak. If possible, try and book tickets to such places around a week in advance so you have reliable weather forecast information. If you have to book much earlier in advance, check the weather forecast anyway. 
7. Free walking tours - Always try and catch a free walking tour on the first day of arrival in a city. It gives you a good idea on how to travel within the city and also which locations you must visit. Additionally, you get to ask the tour guide any question at the end of the tour (the tour guides are extremely friendly).
8. City pass - The first thing to do when you arrive should be to head to the tourist centre. Each city generally has a daily or weekly pass. This may include access to tourist spots. Just speak to the guide and tell them what your rough plans are. These places generally sell maps as well, but most hostels provide free maps so just wait until you get to your hostel
9. Pre-drinks - Alcohol in supermarkets are really cheap! You can easily get a decent bottle of wine for less than 4 euros in most places. Alcohol in bars and clubs are very expensive. Its much better to pre-drink in the hostel before heading out.
10. Walking - Always try and walk whenever possible. This way you can discover hidden back routes and roads which might lead to unknown gems.
11. Pub crawls - Try and go for a few pub crawls during your trip. It is a great way for making new friends (unless you are really unfortunate). They are generally reasonably priced and often include a short period of unlimited alcohol. If it does not, pre-drink! Just watch out for absinthe shots!
12. Planning ahead - While being spontaneous is great, it does not apply all the time. Be sure to have a rough idea on how to get to your hostel before you arrive at that particular city. Find out how to get to the relevant station before your departure date. Have all relevant addresses and details written down somewhere
13. Languages - Try and learn to express basic phrases in the local language. This should, at the very least, include "hello" and "thank you". Trust me, one word can go a long way.
14. Stay safe - Well, needless to say, always be alert and keep your belongings close to you. Bring a padlock and store your valuables safely in the hostel. Theft in hostels are not unheard of.

I apologize if I missed out anything. Will update the list if anything else comes to mind. On a more general note, I believe everyone must try travelling solo at some point in time. It was a real eye opener and I learnt so much in a short span of time. It is only through solo-travelling that you will get to connect within at a much deeper level and reach limits you never knew existed.