NEED TO EXERCISE IMMIGRATION POWER CAREFULLY

Need to exercise immigration power carefully – SLA

KOTA KINABALU Dec 21, 2011: The Sabah Law Association (SLA) supports all legislative and executive decisions by the State Government protecting, enhancing and promoting the constitutional rights of Sabah.

“We commend the State Government in its endeavours to protect whatever remnant privileges and rights the State may have under the Malaysia Agreement and the Malaysia Act,”

said the association yesterday.

The SLA said this in a statement when commenting on the Immigration Department’s decision to bar Harris Ibrahim, the president of the Malaysian Civil Liberties Movement (MCLM), from entering Sabah on December 6.

The SLA said the decision gave rise to concerns over the legality of the action of the State Government and as such offered to clarify the position of the law on this issue.

“Although the legality of the decision of the State Government is beyond reproach for reasons as follows, such decisions ought to be made carefully and ought not to be made frivolously or for reasons which do not further nor protect the interest of the State.

“The decision of the State Government to bar Harris Ibrahim’s entry into the State was made under Section 65(1) of the Immigration Act 1959/1963,” it said in a statement.

“The Sabah Law Association is of the view that the exercise by the State Authority of its rights under the Immigration Act is not just an executive act under an ordinary legislation but is an act pursuant to the constitutional rights accorded to the East Malaysian States under Part VII of the Immigration Act.

“The State Authority’s said decision receives support from the Supreme Court’s decision in 2002 in the case of Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnam where it was held that the exercise of the State Authority’s rights under Part VII of the Immigration Act to cancel the entry permit of a person issued with one without according the affected person the right to be heard or without assigning any reasons for the decision as valid,” the association added.

However, the SLA cautioned that the power of the State to deny entry to non-Sabahans is however a potentially draconian and wide-reaching power which must be judiciously and fairly exercised.

“Although the State is not obliged to provide reasons for or to justify its decision, we would urge the State Government to issue its own statement as to its reasons for doing so in order to avoid the impression that the power was exercised capriciously or to comply with the wishes of the powers-that-be outside of the State.

“Compliance with outside forces surely cannot protect, enhance or promote our constitutional rights,” it said.

----------------

Peaceful Assembly Bill unconstitutional – SLA

KOTA KINABALU Dec 21, 2011: The Sabah Law Association (SLA) said the recent tabling of the Peaceful Assembly Bill (PAB) 2011 would only continue to shackle Malaysians with its heavy chains when the rest of the world are marching towards greater freedom where human rights take centre stage.

The association also contended that the PAB as it stands is unconstitutional.

The SLA pointed out that the people’s rights to assemble peaceably unarmed and the right to freedom of expression are already engraved in Article 10 of the Federal Constitution.

It also cited the Federal Court in Sivarasa Rasiah’s case in 2010 that had recognised these rights as part of the basic structure of the Federal Constitution.

“In the guise of maintaining security and public order the Government has now deemed it fit to take away our fundamental right of expression and to assemble,” said the association in a statement.

The SLA expressed fear that if the PAB were to be passed, it would be more for its restrictions on the citizens’ rights than in advancing it.

“Of what value is a right to assemble when peaceful street protests by unarmed citizens would now be totally banned which hitherto could be carried out with permit under Section 27(2) of the Police Act 1967?

“Of what value is the right to assemble when a prior notice need to be given and police permit obtained when the feature of assembly lies in its spontaneity?” asked the association.

The SLA contended that the Minister in the Prime Minister’s Department Datuk Seri Mohamed Nazri’s view that the PAB is not unconstitutional because Article 10(2) allows Parliament by law to restrict the freedom of assembly is too simplistic a view.

“This does not give Parliament the carte blanche to pass any law that renders the fundamental rights a mirage.

“We need to be reminded only of the Supreme Court decisions in 1992 and 2010. In Nordin Salleh’s case it was held that it would be unconstitutional for Parliament to enact laws that would render the fundamental rights illusory.

“In Sivarasa Rasiah’s case it was held that any restriction to the fundamental rights under Article 10 must be reasonable and proportionate to the object march the restrictive legislation seeks to achieve,” it added.