KiniGuide | Last Sunday, Bersih chairperson Maria Chin Abdullah was barred from leaving Malaysia.

She joins a list of more than 800,000 people who have been prevented from travelling overseas since 2011. However, unlike many of them, Maria did not know why she was not allowed to leave the country.

In this installment of KiniGuide, we explore your right to overseas travel, and where the government can or cannot restrict those rights.

Wait. Overseas travel is a right?

Yes. According to lawyer Syahredzan Johan, this comes under Article 5(1) of the Federal Constitution, read together with Article 9 that provides for the freedom of movement.

Article 5(1) states: “No person shall be deprived of his life or personal liberty save in accordance with law.”

Syahredzan (photo) said the courts have interpreted ‘personal liberty’ to include overseas travel.

This does not amount to a blank cheque to go on that dream holiday, though. What it does mean is that if the government wants to restrict your ability to travel overseas, it would have to do so by passing laws to that effect.

However, the Immigration director-general Sakib Kusmi seems to have taken a different view on the matter.

“The Malaysian international passport is a travel document issued by the government under the aegis of the Yang DiPertuan Agong.

“So, the government has the discretion to either issue, defer or revoke the travel document,” The Star quoted him as saying today.

In either case, do make sure your paperwork is in order before you travel.

Besides Maria, who has been barred?

According to a parliamentary reply by Home Minister Ahmad Zahid Hamidi in March, the Immigration Department has blacklisted 827,921 Malaysian citizens since 2011. That’s about 2.8 percent of the Malaysian population.

Bankrupts make up the bulk of the list, numbering 200,727 people; while 188,892 people are blacklisted for offences related to their education loan – presumably because they defaulted.

Another 520 are blacklisted for security offences, while 507,782 are barred for ‘other reasons’.

However, a Daily Express report almost exactly a year earlier cites Sakib (who was then a deputy director-general of the Immigration Department) as having provided a much lower figure – 326,533 Malaysians and 356,461 foreigners, or a total of 682,994 people.

That’s a lot of people. Is there anyone important there?

Of course, and we know of a few examples. Petaling Jaya Utara MP Tony Pua was barred from travelling to Yogyakarta on July 22. Like Maria, he too was not given any reason for the ban at the time.

Pua has sued the government over the matter, and the High Court in Kuala Lumpur is slated to hear submissions regarding the reasonableness of the ban on July 28.

Social activist Hishamuddin Rais was also banned from travelling overseas, which he found out when departing for South Korea on Dec 3 last year. He was merely told at the immigration checkpoint that he could not leave because there was a ‘new case’ against him.

Hishamuddin was invited to visit South Korea by an NGO to observe a rally in Seoul.

According to a report by Daily Express in March last year, VIPs are not spared either – including individuals who have been conferred titles, celebrities and CEOs of big companies.

"There are indeed many cases of VIPs and VVIPs blacklisted. Most of them don't even know they have been blacklisted and have either forgotten to pay their income tax or failed to repay large bank loans.

"Some only learn about their travel status when they want to go on pilgrimage. But they will not be given special treatment when they are detained and they will not be allowed to travel abroad until they clear matters pending with the respective agencies," Immigration Department’s Sakib was quoted as saying.

Am I blacklisted too?

The Immigration Department has a special website for you to check. If it tells you to refer to an immigration officer, you may have issues when you turn up at the immigration checkpoint.

However, this does not necessarily mean you are completely barred from overseas travel. It may be that you are merely barred from travelling between Peninsular Malaysia, Sabah and Sarawak, but not abroad. So call up an immigration officer to check on the status of your travel documents and see what you can do about it.

Even if you are blacklisted, you might still be able to get special permission to travel. For example, if you have been declared a bankrupt, you can apply to the director-general of Insolvency for that permission.

How do people end up on that blacklist?

There are a number of ways. Examples include:

  • Being bankrupt
     
  • Missing payments on loans, taxes, or duties;
     
  • Being a director of a company that has missed payments to the Employees Provident Fund (EPF);
     
  • Being a person out on bail who, as part of the bail condition, have been ordered by the court to surrender his passport; and
     
  • Being a person travelling overseas through or from Malaysia to commit acts of terrorism abroad.

According to a 2013 Berita Harian report quoting then Immigration Department director-general Alias Ahmad, 6,564 Malaysians had their passports cancelled for their actions while overseas.

This includes violating the immigration laws of the countries visited, involvement in criminal activities, and ‘tarnishing the nation’s image abroad’.

More recently, The Star quotes the new director-general Sakib as saying that the government has made a list of offences that could get a Malaysian temporarily barred from leaving the country for a period between two to 10 years.

Apart from what Berita Harian has already reported, one could also get blacklisted for deliberately damaging their passports, losing their passports three times in five years due to negligence, or visiting Israel without approval.

And of course, ‘running down the government’ can get you barred too, going by The Star’s report, which quoted an anonymous source whose claims were confirmed by Sakib.

What laws govern all these blacklists?

As alluded to at the beginning of this KiniGuide, there are laws regulating the conditions in which a person may be barred from travelling abroad. However, you will be hard pressed to find it in the Immigration Act 1959/63 or the Passports Act 1966.

Instead, the relevant provision can be found in a range of different laws. An example of a typical provision is this from the Section 38A(1) of the Bankruptcy Act 1967: “The Director-General of Insolvency may, by notice issued to any immigration officer, request that a bankrupt be prevented from leaving Malaysia.”

The exact wording varies, depending on the requirements of the law that contains the provision, but generally requires a director-general or equivalent officer to write to an immigration officer, or director, or the director-general of immigration, depending on which law is being referred to.

Some laws also explicitly require that a person whose travel documents have been revoked or suspended is notified, such as the Special Measures Against Terrorism in Foreign Countries Act 2015.

Other examples of laws that contain provisions to bar Malaysians from leaving the country include the Income Tax Act 1967, Securities Commission Act 1993, Financial Services Act 2013, EPF Act 1991 and the Goods and Services Tax Act 2014.

However, it is not always clear what provision is being used to bar one from overseas travel, such as in the case where one is blacklisted for ‘tarnishing the country’s image’.

Neither The Star’s nor Berita Harian’s report cited the provisions used to enforce these bans.

Does it matter whether the government tells me why I can’t leave?

While most laws are silent on whether the government provides reasons for barring people from leaving the country, there are good reasons for this to be the norm.

As described above, there are a number of disparate ways that one could be legitimately barred from overseas travel.

“That is why it is so important that the person is informed by the Immigration Department as to why exactly he or she is barred from leaving the country,” Syahredzan said.

“It would be unfair to the person if his freedoms under Article 5 and Article 9 of the Federal Constitution are denied without him or her being informed of the reasons for the denial of these freedoms. It is the same principle when a person is arrested; the police must inform the person the grounds of his or her arrest.

“The person who is barred from leaving the country may feel aggrieved and may wish to challenge the prohibition by way of judicial review. That is why it is important for him or her to know the grounds for his or her travel ban,” Syahredzan said when asked yesterday.

Maria can still challenge the prohibition, despite not knowing the reason why she was banned. And Pua certainly has.

“But it’s like shooting in the dark,” Syahredzan added, since Maria didn’t know what exactly to challenge.

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