Personal liberty enshrined under Article 5 of the Federal Constitution includes the right of Malaysians to travel abroad, lawyer Gobind Singh told the Court of Appeal today.

Gobind, appearing for Petaling Jaya Utara MP Tony Pua, who was barred from travelling to Jogjakarta, Indonesia two years ago, said the apex court had recognised this right.

“The apex court wrote that personal liberty includes the right to travel abroad,” he said, adding that with the apex court recognising this, nobody can take away that right.

Furthermore, Gobind said Pua renewed his passport in 2014, before the Jakarta trip, and it expires in 2020.

“Hence, Pua has a legitimate expectation to be allowed to travel abroad as he possesses a valid travel document,” he added.

Gobind said the Immigration Department had prohibited Pua from travelling following a letter issued by inspector-general of police Khalid Abu Bakar, saying the PJ Utara MP was being investigated under Section 124b of the Penal Code, for attempting to overthrow the government.

He said this was only affirmed by the then-immigration director-general, after Pua filed the judicial review application to challenge the ban, after his earlier correspondence with the department saw no response.

“However, the DG did not produce the letter by the IGP. According to court rules, when a person affirms the affidavit and refers to a document, the document must also be produced.

“We took objection to the reference of a purported letter from the IGP when the letter was never produced in court. Failure on the part of the DG to provide the IGP's letter is a violation and hence that part of the affidavit should have been rendered inadmissable. The High Court judge failed to consider this,” he added.

Justice Mohd Zawawi Mohd Salleh asked whether this should be construed as “hearsay evidence” to which Gobind replied in the affirmative as the assertion was made without supported evidence on record and hence this is inadmissable in law.

Furthermore, Gobind said Pua was a witness and not a suspect in the 124b probe and the immigration DG should have not made a mechanical decision based on the purported letter by the IGP, as he should have used his discretion.

No power to restrict persons from exiting

The lawyer also pointed out that under Schedule II of the Immigration Act, the DG only has power to restrict entry of a person into the country and there is no provision for him to restrict a person from exiting.

“Parliament gives powers to the DG to restrict entry but is silent on people leaving the country. This means there is no such power given to the DG to restrict people from leaving the country,” he added.

Justice Zawawi then asked what about the immigration prohibiting people for not paying income tax, Gobind said there were existing provisions within the Inland Revenue Board to prohibit a person.

It was reported that Pua was barred from travelling to Yogjakarta on July 22, 2015, after the IGP informed the immigration DG that the politician was being investigated under Section 124b of the Penal Code via a letter dated July 15, 2015.

Pua filed a judicial review application in August 2015, to quash the immigration DG’s decision to issue the order to ban him from travelling overseas.

However, the KL High Court had ruled that the ban was allowed to stand on the grounds that the right to travel abroad is not a constitutional right for all.

Senior federal counsel Shamsul Bolhassan today reiterated that the right to travel abroad is not a constitutional right.

“It is a privilege not a right,” he said, citing another case where this was decided.

Shamsul also argued that the issue of whether Pua was a witness or a suspect in the 124B prove was irrelevant in this case.

Besides Pua's case, there are two other matters involving Bersih chairperson Maria Chin Abdullah and cartoonist Zulkifli Anwar ul Haque, where a similar travel ban is being challenged.

Pua's name was removed from the immigration blacklist six months ago but he told reporters after today's proceeding that he was proceeding with the judicial review as it not only involved losses but his constitutional right as well.

Justice Zawawi said the bench needed time to deliberate as this involved a constitutional matter. The other two judges are Justice Idrus Harun and Justice Kamardin Hashim.

Meanwhile, at the same court, Selangor exco member Nik Nazmi Nik Ahmad withdrew his appeal over his failure to strike out his Peaceful Assembly Act charge for not giving proper notice.

His lawyer Louis Liaw told the bench that since Nik Nazmi had pleaded guilty and was fined RM1,500, his client had instructed for the appeal to be withdrawn.