Loh Wai Kong v. Government of Malaysia
Encyclopedia
Loh Wai Kong v. Government of Malaysia (1979) 2 MLJ 33
was a case
heard in the Federal Court
of Malaysia. Loh Wai Kong sought a ruling from the courts that Malaysian citizens were entitled to travel overseas as a fundamental right under Article 5 of the Constitution
. The Federal Court ruled that no such right existed.
. He returned to Malaysia in April 1975, and was charged with a criminal offense in the High Court
at Ipoh
on 2 August 1976. Loh obtained bail on condition that he surrender his passport. On 2 March 1977, his passport expired, and Loh had it returned. He later applied for a new passport, citing the need to return to Australia by 1978, or his resident visa there would expire. The authorities rejected the application, saying that he was involved in a criminal case and that the issuance of a passport was at the discretion of the Yang di-Pertuan Agong
(King). Loh then filed suit in the High Court at Penang
, asking the court to compel the government to issue him a passport, on the grounds that the right to travel abroad is a fundamental liberty protected by the Constitution.
The High Court rejected Loh's application, but made a number of statements in its ruling which the government disagreed with. In particular, the trial judge held that the phrase "personal liberty" in Article 5 of the Constitution included the right to leave the country, and that the refusal to issue a passport constituted an infringement of the right to personal liberty. The government thus appealed to the Federal Court for clarification.
In the Federal Court, Loh's lawyer said that although Loh did not have an absolute right to a passport, he did have a qualified right on condition of good character. The government responded that no such right, absolute or qualified, existed.
Tun
Mohamed Suffian Mohamed Hashim
held that the Constitution is silent as to the right to travel overseas, although it refers to the right to travel and reside within the country. Suffian noted the India
n case of Satwant Singh Sawhney v D Ramarathnam, where the Indian courts held that Article 21 of the Constitution of India
— roughly corresponding with the Malaysian Article 5 — does include the right to travel abroad. However, he cited with approval the minority judgment in the case, and stated that the issuance of passports was a prerogative of the Malaysian government, concluding:
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
was a case
Legal case
A legal case is a dispute between opposing parties resolved by a court, or by some equivalent legal process. A legal case may be either civil or criminal...
heard in the Federal Court
Federal Court of Malaysia
The Federal Court of Malaysia is the highest court and the final appellate court in Malaysia. It is housed in the Palace of Justice in Putrajaya...
of Malaysia. Loh Wai Kong sought a ruling from the courts that Malaysian citizens were entitled to travel overseas as a fundamental right under Article 5 of the Constitution
Constitution of Malaysia
The Federal Constitution of Malaysia, which came into force in 1957, is the supreme law of Malaysia. The Federation was initially called the Federation of Malaya and it adopted its present name, Malaysia, when the States of Sabah, Sarawak and Singapore joined the Federation...
. The Federal Court ruled that no such right existed.
Background
Loh was a permanent resident of AustraliaAustralia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
. He returned to Malaysia in April 1975, and was charged with a criminal offense in the High Court
Courts of Malaysia
The Judiciary of Malaysia is largely centralized despite Malaysia's federal constitution, heavily influenced by the British Common Law and to a lesser extent Islamic law, and is mostly independent from political interference.-History:...
at Ipoh
Ipoh
Ipoh is the capital city of Perak state, Malaysia. It is approximately 200 km north of Kuala Lumpur on the North-South Expressway....
on 2 August 1976. Loh obtained bail on condition that he surrender his passport. On 2 March 1977, his passport expired, and Loh had it returned. He later applied for a new passport, citing the need to return to Australia by 1978, or his resident visa there would expire. The authorities rejected the application, saying that he was involved in a criminal case and that the issuance of a passport was at the discretion of the Yang di-Pertuan Agong
Yang di-Pertuan Agong
The Yang di-Pertuan Agong is the head of state of Malaysia. The office was established in 1957 when the Federation of Malaya gained independence....
(King). Loh then filed suit in the High Court at Penang
Penang
Penang is a state in Malaysia and the name of its constituent island, located on the northwest coast of Peninsular Malaysia by the Strait of Malacca. It is bordered by Kedah in the north and east, and Perak in the south. Penang is the second smallest Malaysian state in area after Perlis, and the...
, asking the court to compel the government to issue him a passport, on the grounds that the right to travel abroad is a fundamental liberty protected by the Constitution.
The High Court rejected Loh's application, but made a number of statements in its ruling which the government disagreed with. In particular, the trial judge held that the phrase "personal liberty" in Article 5 of the Constitution included the right to leave the country, and that the refusal to issue a passport constituted an infringement of the right to personal liberty. The government thus appealed to the Federal Court for clarification.
In the Federal Court, Loh's lawyer said that although Loh did not have an absolute right to a passport, he did have a qualified right on condition of good character. The government responded that no such right, absolute or qualified, existed.
Judgment
The judgment penned by Lord PresidentLord President of the Federal Court
The title of Lord President of the Supreme Court was formerly the title of the head of the judiciary in Malaysia, until 1994 when the office was renamed "Chief Justice of the Federal Court"....
Tun
Malay titles
The Malay language has a complex system of titles and honorifics, which are still used extensively in Malaysia and Brunei. Singapore, whose Malay royalty was abolished by the British colonial government in 1891, has adopted civic titles for its leaders....
Mohamed Suffian Mohamed Hashim
Mohamed Suffian Mohamed Hashim
Tun Mohamed Suffian Hashim was a Malaysian judge, eventually serving as Lord President of the Federal Court from 1974 to 1982...
held that the Constitution is silent as to the right to travel overseas, although it refers to the right to travel and reside within the country. Suffian noted the India
India
India , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world...
n case of Satwant Singh Sawhney v D Ramarathnam, where the Indian courts held that Article 21 of the Constitution of India
Constitution of India
The Constitution of India is the supreme law of India. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers, and duties of government institutions, and sets out fundamental rights, directive principles, and the duties of citizens...
— roughly corresponding with the Malaysian Article 5 — does include the right to travel abroad. However, he cited with approval the minority judgment in the case, and stated that the issuance of passports was a prerogative of the Malaysian government, concluding:
See also
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- Pihak Berkuasa Negeri Sabah v. Sugumar Balakrishnan & AnotherPihak Berkuasa Negeri Sabah v. Sugumar Balakrishnan & AnotherPihak Berkuasa Negeri Sabah v. Sugumar Balakrishnan & Another 4 CLJ 105 was a case heard in the Federal Court of Malaysia. Sugumar Balakrishnan sought the reinstatement of his entry permit to the state of Sabah...
- Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan & AnotherTan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan & AnotherTan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Another [1996] 1 MLJ 261 was a case heard in the Court of Appeal of Malaysia. The case concerned the allegedly wrongful dismissal of Tan Tek Seng, a schoolteacher...