Article 9:

Prohibition of Banishment

And

Freedom of Movement

The Right and the Prohibition

Freedom of movement - Art. 9.

The article only guarantees the citizen (but not the non-citizen) the right to enter Malaysia.

It prohibits the authority to banish/exclude the citizen.

The right to move freely within the Federation and to reside anywhere therein can be limited by the special immigration laws applying in Sabah and Sarawak and by other exceptions set out in the article.

Constitutional Limitations on the Right

1. Any law relating to the security of the Federation or the security of any part of the Federation. Art. 9(2)

2. Any law relating to public order. Art. 9(2)

3. Any law relating to public health. Art. 9(2)

4. Any law relating to the punishment of offenders. Art. 9(2)

5. Parliament may by law impose restriction of movement and residence between any other State which is in a special constitutional position compared with the States of Malaya, and other States. Art. 9(3)

The Scope of Freedom of Movement : GOVERNMENT OF MALAYSIA & ORS. V. LOH WAI KONG [1979] 2 MLJ 33

Loh Wai Kong applied to the High Court for an order directing the authority to issue him a passport.

He 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. Loh Wai Kong then appealed to the Federal Court.

The Scope : LOH WAI KONG

Art. 9 is silent as to the citizen's right to leave the country, to travel overseas and to have a passport.

The citizen has no constitutional right to leave the country and travel overseas.

A citizen does not have a right, not even a qualified right, to a passport.

A citizen has no fundamental right to leave the country with or without a passport.

The Scope : LOH WAI KONG

The reasons are:

The constitution is unable to guarantee a right to be enjoyed outside the jurisdiction.

The right to travel to foreign countries does not exist in international law but is governed by treaties, conventions, agreements and usage of different kinds.

It would be presumptuous and futile of our constitution-makers to confer a fundamental right which every foreign country may lawfully reject.

The Scope : LOH WAI KONG

In certain circumstances the Government has power to stop a citizen (or indeed even a non-citizen) from leaving.

i.e. when there is a criminal charge pending against him.

The Scope of Freedom of Movement

ASSA SINGH V. MENTRI BESAR, JOHORE (1969) 2 MLJ 30

The question imposed before the court in this case is: Are the provisions of the Restricted Residence

Enactment authorising the detention and/or the deprivation of liberty of movement contrary to the provisions of the Federal Constitution and void?

The Scope: ASSA SINGH

Article 9 of the Constitution has no application or relevance in

the case.

"The right to move freely throughout the Federation and to

reside in any part thereof" is not an absolute and

unqualified right, for it is expressed to be subject to "any

law relating to the security of the Federation or any part

thereof, public order, public health, or the punishment of

offenders”

The Limitation in Article 9(3): Special Powers of Sabah & Sarawak

The Constitution permits the Borneo States through Federal law, to control entry into either State of citizens from elsewhere in Malaysia.

The Immigration Act 1963 gives each of the Borneo States wide powers to control entry into and residence in the State.

A West Malaysian needs an Entry Permit to enter Sabah. - s. 66 of the Immigration Act 1959/63, Act 155

Such an entry permit is issued by the Director of Immigration for Sabah

Article 9(3): Entry Permit

Section 64. Application of immigration law to each East Malaysian State as separate unit.

Part VII of the Act covering ss. 62 to 74 contains the special provisions for the Borneo States.

Those provisions can only be changed with the concurrence of the State concerned. -Article 161E.

Article 9(3): Entry Permit

Section 66 of the 1963 Act- Malaysian citizens who are entitled to enter an East Malaysian States without having obtained a Permit

Entry permit may lawfully be cancelled under s 14 of the Act by the State or any other authority.

Pihak Berkuasa Negeri Sabah v. Sugumar Balakrishnan & Another Appeal [2002] 4 CLJ 105

While art. 9 (2) provides that every citizen has the right to move freely throughout the Federation and to reside in any part thereof, it is subject, inter alia, to art. 9(3) by virtue of s. 60(2) of the Malaysia Act 1963.

Art. 9(3) of the Constitution“clearly refers to Sabah and Sarawak, both of which enjoy such a special position. The purpose of the qualification is to ensure that constitutional challenges cannot be brought against these States in respect of their special immigration powers which may be used to control entry from Peninsular Malaysia.”

The Right to have Driving License and to Drive on the road: The Validity of Suspension of Driving License under Road Transport Act 1987

Freedom of movement on the road is embodied in art. 9(2).The right is expressly made subject to “any law relating to … public order”.

Without a driving license a person cannot drive on the road. Suspension of driving license means a person’s right ti drive on the road is denied. Such suspension could be made by the authority under Section 32, 35, 36 and 41(5) of Road Transport Act 1987.

Is the suspension constitutional?

The freedom of movement on the road is not absolute but is qualified by the overriding interests of public safety.

Although s. 41(5) is discriminatory, it is expressly allowed by the qualification in art. 9(2) of the Federal Constitution and also by judicial interpretation of the meaning of “public order” and “public safety”.

The governmental policy and purpose underlying suspension of the driving licence in Section 32, 35, 36 and 41(5)

is declared in the text of s. 35(1)(2) and (3) namely, “it would not be in the interests of public safety for him (ie,

the driver) to hold a valid driving licence”.

The purpose of “public safety” is part of the wider concept of public order and maintenance of public order is equated with the maintenance of public tranquility.

Ordinarily, “public safety” means security of the public or their freedom from danger.

In the legislative contexts of ss. 35, 35A and 36, “public safety” means the security of the public or their freedom from danger to life and limb

(ie, risks of loss of life and risks of bodily injury) in the exercise of their freedom of movement on the road;

in other words, the welfare and protection of the general public on the road.

PP v.HARMENDERPALL SINGH JAGARA SINGH [2007] 2 CLJ 577

Related Case

DATUK SYED KECHIK BIN SYED MOHAMED V. GOVERNMENT OF MALAYSIA & ANOR. [1979] 2 MLJ 101