Immigration has no power to revoke passports, say lawyers

Immigration Department director-general Datuk Mustafa Ibrahim announced yesterday that Alvin Tan's and Ali Abd Jalil's passports had been revoked. – The Malaysian Insider pic by Afif Abd Halim, December 9, 2014.

Putrajaya has no authority to revoke passports of its citizens, civil lawyers said today, adding that such administrative action is in breach of fundamental rights accorded in the Federal Constitution.

They argued that a Federal Court ruling in 2009 had held that "personal liberty" under Article 5 includes the right of Malaysians to travel abroad with a valid passport.

Their comments came after the Immigration Department announced yesterday that it had revoked the Malaysian passports of sex blogger Alvin Tan and activist Ali Abd Jalil, who are seeking political asylum abroad.

The lawyers said the department should immediately cancel the order in deference to the apex court's ruling.

At best, the lawyers pointed out that law enforcement agencies could stop a citizen, including those facing criminal charges, from going abroad.

Lawyer R. Kengadharan said any law passed by Parliament, including the Passports Act, would be illegal if it went against the constitution which is the supreme law of the land.

"The department has transgressed an irrevocable right and had acted contrary to natural justice," he said.

Kengadharan said the aggrieved parties could apply to the court and demand that the department comply with the law as interpreted by the court.

The lawyer was responding to comments by the Immigration Department director-general Datuk Mustafa Ibrahim who had said that the duo's actions could not be "tolerated".

"We will not tolerate any individual who insults the judiciary and Malay rulers," Mustafa had said, adding that notices would be sent via registered mail to both Tan and Ali's last known addresses to inform them about the action.

"Besides sending the notices, we will also place announcements in local newspapers about the decision," he had said.

Lawyer S. N. Nair said there was no provision in the Passports Act which empowered Mustafa to cancel a Malaysian passport lawfully issued to a citizen.

"Leaving aside the court pronouncement, it looks like the director-general has exceeded his authority," he said.

Nair said the public prosecutor could have applied to impound the passports of the two and prevent them from legally leaving the country.

"The two could have been restricted from leaving for overseas but their right to a passport has now been infringed for making remarks against the authorities," he added.

Nair said the government could have enlisted the help of the countries where both were residing now and extradite them to face charges in Malaysia.

Lawyer Datuk Ambiga Sreenevasan says the Immigration Department seems to have breached Article 9 of the Federal Constitution. – The Malaysian Insider file pic, December 9, 2014.Lawyer and human rights advocate Datuk Ambiga Sreenevasan asked Mustafa which federal law he had relied on when he withdrew the passports of the two men.

She pointed out that the department appeared to have breached Article 9 of the constitution for banishing citizens following the revocation of the travel document while they were abroad.

"The two cannot return home now unless they are issued a special pass," she added.

Ambiga said the two also could not travel to a third country without passports.

The civil lawyer said it was wrong and a gross abuse of power on the two men who were not the given the right to be heard.

"No responsible government behaves in the appalling manner against its own citizens," she said. 
 
Lawyers For Liberty executive director Eric Paulsen said the action against the two was akin to using a sledgehammer to kill a mosquito.

He said the government was being petty for acting against the duo for criticising and insulting the institutions and Home Minister Datuk Seri Ahmad Zahid Hamidi.

"The passport revocation is unreasonable and arbitrary as it did not commensurate with the alleged offence committed or any wrong doing," he said.

He said Tan and Ali would now be undocumented individuals overseas following the withdrawal of their passports.

Lawyer Annou Xavier said while the government might have valid reasons to act against the duo for insultig the Malay rulers, it had no business to defend the judicary.

"The courts have high tolerance and do not need the executive and civil servants to protect them," he said.

He said the Attoney-General could institute contempt proceedings against individuals for showing disrespect to the courts.

Tan yesterday challenged Zahid to carry out his threat to revoke his passport.

"Don't just threaten. Just do it. Don't be (a) coward," Tan had said on his Facebook page in response to Zahid's comments that Putrajaya was mulling the move after Tan criticised the Sultan of Selangor for stripping Datuk Seri Anwar Ibrahim of his state award.

Zahid had said the department had the power to cancel Tan's passport as the document was not an individual’s property.

Tan is currently in Los Angeles, California, while Ali is in Sweden where he has been seeking political asylum since October.

Ali faces three sedition charges for allegedly insulting the Johor royal family and the Sultan of Selangor in his Facebook postings.

Ali was first detained on September 8 and taken into police custody in Kuala Lumpur, Selangor and Johor.

On September 23, he was released after posting bail of RM8,000 at the Shah Alam court complex.

His freedom was short-lived as he was re-arrested and taken to Johor, reportedly because other police reports had been lodged against him there.

Following his ordeal, Amnesty International adopted him as a prisoner of conscience,  saying it was part of a push to ensure he did not suffer further punishment or selective prosecution.

- TMI