The Malaysian Immigration Act 1959/63 focuses more on control of entry into the country as opposed to control of departure from Malaysia. This can be seen from sections 5, 6, 7, 8, 9 and 10.

In the case of departure from Malaysia, section 5(1) only states that;

“The minister may, by notification in the gazette, prescribe approved routes and declare such immigration control posts, landing places, airports or points of entry, as he may consider to be necessary for the purposes of this Act, to be immigration control posts, authorised landing places, authorised airports or authorized points of entry, as the case may be, and no person shall, unless compelled by accident or other reasonable cause, enter or leave Malaysia except at an authorised landing place, airport or point of entry.”

It may be argued that the intention of Parliament was to make sure people enter or leave Malaysia at an authorised place i.e airport.

Only in exceptional conditions i.e. accident or other reasonable cause; can a person land or take off from other unauthorised points.

The law does not give powers to the minister to prohibit departure but the minister may prohibit any entry as the case maybe.

The act of the Immigration Department in denying Bersih chairperson Maria Chin Abdullah’s application to leave the country might be unconstitutional and in breach of Article 9.

Although Parliament may impose restrictions on movement, it must be justified i.e. for security reasons.

However Maria may face difficulties in obtaining leave to file a judicial review application since section 59A of the Immigration Act clearly states that no judicial review shall be brought against the minister for any decision made unless if it involves a question of whether procedures under the Act have been complied with.

However, we must bear in mind that previous challenges (which have failed due to section 59A) have been more on challenging the right of entry, not right of departure.

Maria needs to convince the court that her judicial review application will be more on the failure of the Immigration Department to observe due process in departures.