PROHIBITION OF BANISHMENT

AND FREEDOM OF MOVEMENT

Article 9
 Learning Outcome…

Article 9

(1) (2) (3)

No banishment Subject to clause (3) Restriction by law
No exclusion security, public order, movement and residence
public health,
punishment of offenders
 FREEDOM OF MOVEMENT
– Every citizen has the right to move freely
throughout the Federation and to reside in any
part [9(2)]
– Subject to :
• any law relating to the security
• public order
• public health
• punishment of offenders
• Freedom of movement inside the Federation
• Clause (3) was inserted in 1963 in relation to the
formation of Malaysia-mainly to allow Sabah and
S’wak to have more control over movement in or
outside the states
• Part VII of the Immigration Act provides special
provision for the states of Sabah and S’wak
• Therefore, in Sabah and S’wak- freedom of
movement is limited
• Other states, freedom of movement is quite wide
but subject to the law relating to public order,
public health and punishment of offenders
• One of the laws is Restricted Residence Enactment
• After that known as Restricted Residence Act
(Revised 1989)
 Assa Singh v MB Johor [1969] 2 MLJ 30
• Reading the provisions Article 9 together, it is reasonably
clears that it was designed primarily to emphasize the factual
unity of the Federation and to secure the right of a free
citizen to move from one place in the Federation to another
and to reside in any part thereof
• This Article was meant ‘to remove all internal barriers in the
country and to make it as a whole the dwelling place of all
citizens’.
• In this case, it was argued that RRE is contrary to Article 9 but
the court held that the RRE is a security law and therefore it
can be contrary to Article 9.
• The court also referred to Article 4(2)(a) which further
restricts any challenge to such law
• Govt. of Malaysia v Loh Wai Kong- Lawyers
attempted to expand horizons of Article 9 (2)
to encompass a right to a passport, a right to
leave the country and to travel overseas. This
was rejected by the court.
• Pua Kiam Wee v Ketua Pengarah Imigresen
Malaysia & Anor [2017] MLJU 902
 Court of Appeal: Freedom of movement is
guaranteed in Article 9, however such freedom, as
pointed out by the Federal Court in Loh Wai Kong,
only guarantees the citizen to enter Malaysia and to
move freely within the Federation and to reside
anywhere therein, subject to restrictions as
Parliament may by law impose. The constitution is
silent as to the citizen's right to travel overseas.
 Restricted Residence Act 1933
was repealed by the Restricted
Residence (Repeal) Act 2011
• The Act provides for confinement or exclusion to a restricted area by an
administrative order by the Minister of Home Affairs and not pursuant to a
judicial order by a court of law after a trial.
• A person subjected to a restricted residence order under the Act would
not therefore have an opportunity to defend himself in any legal
proceedings before the order is made. An order under the Act may be for
the life of the person to whom it relates or for a term to be stated in the
order. 
• i.e Any individuals under the restricted residence order were previously
transferred to remote places.
 • "Today, with physical infrastructure development,
better transportation system and rise in
urbanisation, nearly two-third of Malaysia have
mysinchew
become urban areas. A large part of the country's
nooks and crannies have become accessible," he
said.
• He added that mobile broadband, smartphones,
email, Skype and WiFi and other advancements in
the Internet age had rendered the use of restricted
residence ineffective because virtual connectivity
had become an alternative means of communication
for the physically restricted individuals.
• "Based on this, it was clear that the Restricted
Residence Act 1933 is no longer needed and the
government feels that the decision to repeal this act
is appropriate," he said.
• The move would help achieve a more equitable
implementation and administration of the legal
system apart from safeguarding individual rights as
provided for under the constitution
 RIGHT OF RESIDENCE
• A9(2) confers a right on all citizens to reside in
any part of the Federation.
• A8(4) forbids public authority discrimination
on the ground of residence
 Limitations on rights of
movement & residence
1-Article 9(2) Parliament may regulate these
rights on 4 grounds- security, public order,
public health or the punishment of offenders

2-Article 9(3) Parliament may enact

immigration laws to impose restrictions on
the rights of West Malaysians to move to or
reside in Sabah & Sarawak
 Limitations on rights of
movement & residence
• Parliament has exercised this power by Part VII to the
Immigration Act 1959/63 on Special Provisions for
East Malaysia.
• Section 66 (1) Subject to subsection (2) and to
sections 67 and 68, a citizen shall not be entitled to
enter an East Malaysian State without having
obtained a Permit or Pass in that behalf unless— (a)
he belongs to the East Malaysian State;…
• Pihak Berkuasa Negeri Sabah v Sugumar
Balakrishnan [2002] 3 MLJ 72
• The respondent is a Negeri Sembilan born Malaysian who first went to
Sabah in August 1975 to work as a teacher. Later, he qualified as a lawyer
and since 1985 he has been practising law in the state under a work pass
issued to him under reg 16(1) of the Immigration Regulations 1963. As he
is not a person belonging to Sabah under s 71(1) of the 
Immigration Act 1959/63 , he is required to obtain a pass to enter and
remain in Sabah under s 66(1) of the Act. Sometime in 1995, he applied
for an entry permit, which was granted to him on 27 December 1995 for a
period of two years. It is common ground that on the completion of two
years, the respondent would be treated as belonging to Sabah under s
71(1) of the Act.
• However, on 12 November 1997, which was about six weeks before the
expiry of the two year period, the respondent was served with a notice of
cancellation of entry permit dated the previous day under s 65(1)(c) of the
Act. This notice was signed by the Director of Immigration, Sabah under
the direction of the state authority pursuant to the powers conferred
under s 65(1) of the Act.
• Federal Court held-
 Judicial review is not concerned with the decision-making process. Except
for procedural defects, there could be no judicial review of immigration
decisions by Sabah & S’wak because of the existence of Article 9(3)
 Although Article 9(2) gives a right to move freely throughout Malaysia and
to reside in any part thereof such a right is subject to restriction under
Article 9(3) which clearly refers to Sabah and S’wak, both of which enjoy
such a special position.
 Dato Syed Kechik bin Syed Mohamed v Govt of
Malaysia [1979] 2 MLJ 101
• DSK was a political secretary of the CM of Sabah and also a Senator
• Even though he was not originally from Sabah, he was initially granted a
permanent resident
• Later on, he had obtained the status of the native of Sabah and he had been
staying in Sabah since 1965
• In 1976, a new govt was voted in- opposed to DSK’s party
• There were talks and rumours that he would be expelled from Sabah by the
new govt
• He applied from the court a declaration in anticipation
• The court agreed and granted him a declaration
• Federal Court awarded a declaration that the federal & state govt. have no
right to expel the applicant from Sabah.
- On matters of immigration, the Borneo States have full control except as
provided in S 66-68 of the Immigration Act 1959/63.
- Under one of these sections, a Malaysian cannot be refused entry or
residence if he belongs to one of the Borneo States
- The applicant was a native of Sabah
- He belonged to the State and could not be expelled.
• Federal Court:
 The appellant was entitled to a declaration that he belongs to
the State of Sabah in accordance with section 66(1)(a) and
section 71(1)(a) of the Immigration Act, Act 155 and that he is
a permanent resident of Sabah within section 71(1)(a) of the
Act;
 His right to remain in Sabah conferred under section 10 of the
Act in the form of the Entry Permit issued to him is still
subsisting but he may be deprived of it by the State or any
other authority in the circumstances set out in section 14 of
the Act;
 However, appellant's right to enter and reside in Sabah does
not depend solely on the entry permit. Even if the entry
• Ambiga a/p Sreenevasan v Director of
Immigration, Sabah, Noor Alam Khan bin A
Wahid Khan & Ors [2018] 1 MLJ 633
• Facts: The appellant wrote to the first
respondent (‘R1’) to enquire whether there
was any bar against her entering Sabah to
speak at a public forum. R1 replied that the
appellant’s ‘application’ was forwarded to the
state authority and that it was rejected
• The appellant applied by way of judicial review
to quash the impugned decision and to
compel the respondents to allow her to enter
Sabah because she had previously entered
Sabah without objection or restriction from
the state authority and also because other
speakers from West Malaysia had been
allowed entry to participate in the forum.
• The High Court dismissed the appellant’s
application
• The appellant appealed. She argued among
others that the respondents had breached her
fundamental liberties under arts 5(1), 8(1) and
9(2) of the Federal Constitution.
• Court of Appeal dismissed the appeal and held
among others:
 The appellant’s allegation that the
respondents had breached her fundamental
liberties under arts 5(1), 8(1) and 9(2) of the
FC were issues that were already decided
upon by the Federal Court in Sugumar’s case.
 There was no other precedent or decided case
on s 59A of the Act of equal weight which
stood for the opposite proposition which this
court could follow.
 There was no reason for this court to depart
from the decision in Sugumar’s case which
was correctly decided based on sound
principles of law
 Limitations on rights of
movement & residence
3- A4 (2) (a)- no law can be challenged if it
imposes restrictions on the rights mentioned
in A9(2) but does not relate to the four
permissible grounds specified therein.
- Parliament is supreme in relation to freedom
of movement
 Muhamad Juzaili bin Mohd Khamis & Others v State
Government of Negeri Sembilan & Others [2014] MLJU
1063
• Facts: In the judicial review, the three who are bridal make-up artists
claimed that Section 66 of the Syariah Offences Enactment of Negeri
Sembilan did not apply to them as Gender Identity Disorder sufferers.

• The HC of Seremban had dismissed the application for judicial review.

• COA: In allowing the appeal the judges declared that section 66 of the
Syariah Criminal Enactment 1992 (Negeri Sembilan) ("section 66") is void
by reason of being inconsistent with the following Articles of the Federal
Constitution, namely, - Art. 5(1); Art. 8(1); Art. 8(2); Art. 9(2); and Art.
10(1)(a).

They claimed that their rights of movement were deprived of as they had
always been caught by the Religious Department because of wearing women
outfit
• FC: The Respondent argument that the legislation on Islamic
Law passed by the state legislature must comply with the
provisions on fundamental liberties in Art.5(1); Art. 8(1); Art.
8(2); Art. 9(2); and Art. 10(1)(a) is an argument that directly
questions the legislative powers of the state legislature.
• The Respondent had failed to follow the specific procedure as
laid down in clauses (3) and (4) of the Article 4 of the FC. The
learned judges of the Court of Appeal as well as the High
Court were in grave error in entertaining the Respondent’s
application to question the validity/constitutionality of section
66 by way of judicial review.
 Limitations on rights of
movement & residence
4- Parliament has the authority to regulate freedom
of movement & residence under A149 &150 which
deal with subversion & emergency
- e.g is the previous Restricted Residence Enactment
- The law was enacted in 1933
- The law permits the making of orders ; to exclude a
citizen from a particular area, to require him to
reside in a designated place, to not leave the area
without prior police permission
PROTECTION AGAINST BANISHMENT

– Art 9 (1) FC- no citizen shall be banished or

excluded from the Federation
– The protection avails only to citizens
• Previously, the law governed banishment is the
Banishment Act 1959. It can only be used against
non-citizens.
• Banishment Repeal Act 1959 was repealed by the
Banishment (Repeal) Act 2011.
• Under the previous Banishment Act, cases mainly
dealt with the issues of citizenship
• Re Hoon Tye Wan [1964] MLJ 90- court reversed the
government’s decision to expel the applicants on the
ground that the applicants, being a citizens by
operation of law, could not be subjected to the
Banishment Ordinance 1959.
Kung Aik v PP [1970] 2 MLJ 174 Re Shirle Gordon; Shirle Re Soon Chi Hiang [1969] 1
Gordon v Minister of Home MLJ 218
Affairs [1974] 2 MLJ 210

The appellant was subject to a
banishment order and he
challenged the validity of this
order claiming that he was a
citizen.
He managed to prove that his
mother was born in the
Federation and he was a child
of a person born in the
Federation and qualifies
therefore as a citizen.
Held: He cannot be banished
Involved a permanent resident.
The applicant was not a citizen
but was a person who had
been granted only an entry
permit and allowed permanent
residence in the country.
Held: the onus of proof lies
upon the applicant to prove
that she was a person in
respect of whom a Banishment
Order could not be made; the
applicant not within the
category of exempted persons
under the Act.
* the PR holder can still be
banished (not excluded by the
Banishment Act)
The burden is squarely on the
applicant’s shoulder to prove
that he belongs to a citizenship
category;
• citizens of which cannot be
banished; or
• the order of deprivation was
in some substantive or
procedural way illegally
made.
A citizen’s protection against
banishment must be read in
the light of the government’s
power to terminate the
citizenship of its nationals.
The effect of renunciation or
deprivation is that the
protection to citizens against
banishment provided by A9(1)
ceases to have any
applicability.
Than
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