Article 9 Tutorial Work PDF

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ARTICLE 9Article 9 - Federal Constitution Article 13 - ECHRArticle 9(1) No citizen shall be banished or excluded from the FederationArticle 9 (2) Subject to Clause (3) and to any law relating to the security of the Federation or any part thereof, public order, public health, or the punishment of off...

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ARTICLE 9 Article 9 - Federal Constitution

Article 13 - ECHR

Article 9(1) No citizen shall be banished or excluded from the Federation Article 9 (2) Subject to Clause (3) and to any law relating to the security of the Federation or any part thereof, public order, public health, or the punishment of offenders, every citizen has the right to move freely throughout the Federation and to reside in any part thereof.

Article 2(1) Protocol 4 Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. Article 2(3) Protocol 4 No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The freedom of movement in the Malaysian Constitution is introduced with a rather contrasting freedom, which is the right of a citizen to remain in Malaysia, i.e., a nonexclusionary right accorded to every citizen to be not excluded from remaining within the borders of Malaysian Federation. This wording of this freedom does not find its counterpart in the ECHR. However, Article 2(1) and (2) Protocol 4 of the ECHR reflects the freedom of movement as contained in Article 9(2) of the FC. Article 9(2) sets out the right for every citizen to move about without restriction in any part of the Federation subject to limitations concerning the wellbeing in terms of health and morals of the general public and for the execution of punishments such as incarceration and detention by the relevant authorities. The distinction of Article 9(2) with its Wetern counterpart can be narrowed down to the elements, Article 9 (3) So long as under this Constitution any other State is in a special position as compared with the States of Malaya, Parliament may by law impose restrictions, as between that State and other States, on the rights

conferred by Clause (2) in respect of movement and

ART 9: Prohibition of banishment and freedom of movement 9. (1) no citizen shall be banished or excluded from the Federation. (2) Subject to Clause (3) and to any law relating to the security of the Federation or any part thereof, public order, public health, or the punishment of offenders, every citizen has the right to move freely throughout the Federation and to reside in any part thereof. (3) So long as under this Constitution any other State is in a special position as compared with the States of Malaya, parliament may by law impose restrictions, as between that State and other States, on the rights conferred by Clause (2) in respect of movement and residence.  

The Court explained the exceptions to the provision in relation to the position of the Borneo States in Dato Syed Kechik bin Sayed Mohamed v Government of Malaysia. In the case of Dato Syed Kechik, a person born in Kedah was afraid that he may be expelled from Sabah. Lee Hun Hoe CJ (Borneo) held : “Article 9…is…subject to the special provisions of the immigration laws relating to the two Borneo states. In so far as immigration is concerned, the Borneo tates have full control…The Immigration Act, 1963, which gives each of the Borneo States wide powers to control entry into and residence in the State can only as, as to these provisions, be changed with the concurrence of the State concerned… The Borneo States are, with certain exceptions, permitted to treat an ordinary Malaysian from peninsular Malaysia seeking entry into either State as if he were a non-citizen…” However the last sentence is a bit overstatement since you don’t require a visa to enter the states.

The Scope of Freedom of Movement  

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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 and Loh Wai Kong then appealed to the Federal Court. Art 9 is silent as to the citizen right to leave the country, to travel overseas and have a passport. The citizen has no constitutional right to leave the country and travel overseas. A citizen has no fundamental right to leave the country with or without a passport. The reasons are the constitution is unable to guarantee the 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. In certain circumstances, the government has the power to stop a citizen from leaving the country.

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Assa Singh V Menteri 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 FC and void? It is held that Art 9 of FC has no application or relevance in this case. PIHAK BERKUASA NEGERI SABAH V. SUGUMAR BALAKRISHNAN & ANOTHER APPEAL [2002] 4 CLJ 105 PUA KIAM WEE V KETUA PENGARAH IMIGRESEN MALAYSIA & ANOR

ARTICLE 2 Freedom of movement 1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own. 3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.

Tutorial Week 9 In light of Article 9 of the Federal Constitution, explain the scope of protection and its limitations as provided under the said provision. Please state all relevant case laws and legislations to support your answer. In addition to that, please draw a comparison with its corresponding provision under the ECHR. Introduction     

Article 9 in general guarantees our freedom of movement in the country A citizen cannot be restricted from being excluded or banished from the Federation and can move freely across state borders This article only guarantees the citizens the right to enter Malaysia However, Sabah and Sarawak, by virtue of their special may also enact laws to restrict entry into their respective states. Therefore freedom of movement in Malaysia is constitutionally guaranteed and regarded as part of Human Rights

Scope of Protection and its Limitations and comparison with its corresponding provision under ECHR

Article 9 of FC

Protocol 4 of ECHR

Art 9(1):  Prohibition of banishment and freedom of movement

Article 3  No one shall be expelled from the territory of the state of which he is national  No one shall be deprived of the right to enter into the territory of the state which he is a national

Art9(2):  Every citizen has the right to move freely throughout the Federation and reside any part thereof  Subject to limitation under (3) and laws related to public order, public health, punishment of offender

Article 2 1. Right to freely move within a country once lawfully there and for a right to leave any country. 2. Everyone shall be free to leave any country

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Dato Syed kechik bin Sayed Mohamad v Government of Malaysia o F: A person born in Kedah was worried that he might be expelled from sabah o H: Sabah is permitted to treat a Malaysian from Peninsular Malaysia as if he was a non- citizen

Secretary of State for the Home Department v Akrich C-109/01, ECLI:EU:C:2003:491  The EU citizens are allowed to stay or leave the country for the employment in another country

Iida v Stadt Ulm Assa Singh v menteri Besar of Johore  The right of citizens of the H: Assa singh was arrested under the provision of RRE Union and their family by the police with the view to forcibly relocating him members to move and to another district to preserved security and public reside freely within the order territory of the Member Singh filed suit claiming that this was a violation of States his right under Art 5 and Art 9 of the FC Government of Malaysia & Ors v Loh Wai Kang  Loh Wai Kong applied to the HC for an order directing the authorities to issue him a passport  He contended that he has the fundamental right to travel abroad and the refusal of passport violated this right  The application has been rejected

Khamis and Ors v State Government of Negeri Sembilan and Ors  Section 66 went further than just restricting the Appellants’ freedom of movement, it denied them freedom of movement. Suffers of GID would never be able to leave their homes and move freely because they would always be subject to arrest and prosecution under section 66. Even if section 66 only amounted to a restriction on freedom of movement, it would be subject to the test of reasonableness laid down by the judicial authorities, which it would not pass Conclusion All in all, ECHR has several protocols, which amend the convention framework and this involves matters discussed and compared with the Federal Constitution in light of Article 9. The provisions from FC and ECHR have done a fair job in governing all the purposes of such enactment....