LAWYERS representing cartoonist Zulkiflee Anwar Ulhaque have applied for an order for stay of proceedings until a determination has been made by the Federal Court on the constitutional questions of travel bans.

Hearing the application, justice Azizah Nawawi of the Kuala Lumpur High Court said a decision would be made on November 28. 

Zulkiflee, better known as Zunar, is applying for a judicial review to challenge an overseas travel ban imposed since last year.

The travel ban was imposed on October 17 last year, when Zunar was barred from boarding a flight to attend a forum at the National University of Singapore. No reason was given for the ban.

A substantive hearing on Zunar’s application for judicial review was originally scheduled for today. However, his lawyers said a new legal development has taken place on November 6 regarding travel bans.

On that day, Petaling Jaya Utara MP Tony Pua’s application for leave regarding his travel ban, instituted on November 2015, was rejected. A three-man panel led by Chief Justice Raus Sharif unanimously dismissed Pua’s application for leave to appeal.

Raus, in his judgment, said the law was settled on the Loh Wai Kong’s case in 1979, as decided by the then lord president Mohamed Suffian Mohamed Hashim.

In that case, Loh had applied for a passport after being charged in a criminal case. Loh later sought a ruling that he was entitled to travel overseas as a fundamental right under Article 5 of the constitution. The Federal Court ruled that no such right existed.

Today, Zunar’s lead counsel Gopal Sri Ram requested the high court to make an order of reference of constitutional questions to the Federal Court under Section 84 of the Court of Judicature Act 1964.

The questions were in relation to:

* Whether the decision in the Malaysian government v Loh Wai Kong (1979) is null and void and of no effect as having been decided without jurisdiction and, therefore, is not in accordance with Article 121 of the Federal Constitution read with Section 67 of the Courts of Judicature Act 1964 as it stood in 1979 when the aforesaid decision was made;

* Whether Section 59 of the Immigration Act 1959 violates Article 5(1) of the federal constitution having regard the decision by the Privy Council in Ong Ah Chuan v Public Prosecutor (1981);

* Whether Section 59A of the Immigration Act 1959 violates Article 5(1) of the federal constitution in that it impedes access to justice guaranteed by that article;

* Whether the decision in Sabah v Sugumar Balakrishnan (2002) is unconstitutional in that it was decided in violation of the provisions of Article 5(1) of the federal constitution. In particular, by following the decision in the Malaysian government v Loh Wai Kong and denying to a supplicant affected decision made under Immigration Act 1959, access to justice which is rightly guaranteed by Article 5(1). 

Gopal told the court today that any court, including the Federal Court, has no jurisdiction save that conferred by the federal constitution or by federal law. 

“Therefore, if the Federal Court as constituted in 1979 had no jurisdiction to entertain an appeal before it, then its decision is null and void as it is violation of the constitution. All arms of government are obliged to act in accordance with the constitution.

“Since Loh Wai Kong is a decision of the former Federal Court, it is best that the constitutionality of that decision is left to the Federal Court. For the same reason, (another) question, which relates to the constitutionality of the decision on Sugumar Balakrishnan is best left to the Federal Court to decide because that case purported to follow and apply Loh Wai Kong. 

“Once it is accepted that at least two of the questions turn on decisions of the Federal Court that violate the jurisdictional provisions of the federal constitution, it is best the matter not be dealt with piecemeal,” Gopal said. 

Zunar filed his legal challenge on December 7, naming the director-general of Immigration, home minister and Malaysian government as respondents in the application.

On April 14, the court granted Zunar’s application for leave for judicial review to challenge the travel restriction issued against him by the department.

A travel ban has also been imposed on Pua and Bersih 2.0 chairman Maria Chin Abdullah. Both have challenged the legality of the ban and failed. – November 16, 2017.