BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)
PRESIDENT Trump’s travel ban has hit a glitch. His executive order banning refugees and visitors from seven Muslim-majority countries entering the US was temporarily blocked from taking effect by a California trial judge. This is a temporary stay until the final hearing of a suit filed by two states – Washington and Minnesota – challenging the legality of the travel ban. Trump appealed to the California Appeal Court for an emergency stay of this temporary restraining order while its appeal against the order of the trial judge proceeds.
The Appeal Court dismissed the appeal. Trump’s lawyers have asked for an expanded 11-member panel of the Appeal Court to reconsider whether the appeal court ruling – upholding the temporary stay – is correct. It will then decide whether or not to make the temporary stay order more permanent by issuing a preliminary injunction. An expanded panel rehearing is not uncommon; and occurs some 15 to 25 times a year in the California Appeal Court.
Washington’s chief lawyer says that in effect the Appellate court treated the hearing as though it was an application for this injunction. He is urging the trial court to proceed to trial and decide on the legality of the ban.
Trump’s lawyers from the Justice Department – equivalent to our Attorney General’s Chambers – maintain that the president has absolute power to impose travel bans. They argued that the ban needed to be reinstated as a matter of national security. In rejecting this argument, the Appeal Court said there was “no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States”.
On Trump’s claim that courts cannot review the president’s decisions about immigration policy, particularly when motivated by national security concerns, even if those actions potentially contravene constitutional rights and protections, the Appeal Court ruled: “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. It is beyond question, that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.”
It is predicted that the case will ultimately be appealed at the US Supreme Court.
The Malaysian immigration authorities also claim similar untrammelled power to ban travel. They say that they need not give any reasons for imposing the ban and that such an order is not subject to review by the courts. Reportedly, the deputy home affairs minister arrogates the right of the immigration authorities to bar anybody from leaving Malaysia, without needing to justify their decisions.
They seem to rely on a rather controversial Supreme Court decision on immigration law in support: Sugumar.
This contention is open to challenge. In one particular case, scheduled shortly for hearing by our apex Federal Court, the provisions of the Immigration Act relied upon to justify such far reaching powers – are being challenged as violating the Federal Constitution.
After all, the right to be heard (and as a prelude – to be supplied reasons for the travel ban order) and the right to seek relief in a court to review the acts of the executive, are fundamental precepts underlying all democratic constitutions. In Malaysia, the Federal Constitution – and not Parliament – is supreme. Constitutional rights cannot be willed away by a mere legislative act of Parliament. Else a ruling party can, by the majority it wields, do away with the essential pillars upon which the constitution is based. To demonstrate the extremity of this position, a parliamentary majority-party could vote to do away with elections and other cherished institutions of the government.
There are at least three decisions of the Federal Court, which have clouded the matter. Two have ruled that the right to travel abroad and leave Malaysia is not a guaranteed right: Government of Malaysia v Loh Wai Kong (1979); Majlis Agama Islam Wilayah Persekutuan v Victoria Jayaseele Martin (2016). Yet another held that it is part of a person’s liberty guaranteed under Article 5(1) of the Federal Constitution: Lee Kwan Woh v Public Prosecutor (2009).
Sabah and Sarawak are allowed to restrict travel into their states of citizens from Peninsular Malaysia. But there is a rider to the exercise of this power. There can be no ban if the sole purpose is for engaging in legitimate political activities: Section 67 of the Immigration Act. Yet politicians and civil society leaders have been routinely denied entry – in defiance of the widespread condemnation of this action as violating the right of every citizen to move freely throughout the Federation: Article 9, Federal Constitution.
Surely, travel is such a key component of modern-day life that it deserves protection as a fundamental right on a dynamic and evolutionary interpretation of the Federal Constitution. And should only be restricted – if at all – on the most compelling of grounds. For this reason the decision on travel bans in courts here and the US will be keenly watched.
Gurdial is a former law professor and currently a legal consultant as well as Deputy President of HAKAM.