By Emmanuel Santa Maria Chin and Kenneth Tee | Malay Mail
Although it may seem drastic, Immigration Department director-general Datuk Khairul Dzaimee Daud’s recent threat to revoke the passes of foreigners who make statements which are considered detrimental to the nation’s image does go by the book.
However, legal experts familiar with the Immigration Act 1959/63 told Malay Mail that although the law allows for such extreme measures, revoking one’s pass as punishment for merely making a statement would most likely come across as unjust and makes such overarching powers subject to judicial re-interpretation.
This is in response to a threat made on Monday by Khairul Dzaimdee against foreigners here in which he stated that he could potentially revoke their passes if the situation called for it.
The threat was made following an uproar over the alleged mistreatment of foreign nationals by Malaysia as claimed by those featured in a 25-minute documentary that was released on June 3 by international news agency Al Jazeera.
It’s legal, but is it reasonable?
Several lawyers who spoke to Malay Mail affirmed that as per Section 9(1)(b) and (c) of the Immigration Act, the director-general may, at his discretion, in the interest of public security, or due to any economic, industrial, social, education, or other conditions in Malaysia, revoke or cancel the passes and permits of foreign nationals here.
The law also spells out how the director-general can also prohibit the entry and re-entry of any individual into the country, either temporarily or permanently, if he is satisfied that allowing such persons in would affect the wellbeing and public order of the country, similar to the caveats already mentioned.
However, despite the law allowing it, lawyer Fahri Azzat told Malay Mail that for the director-general to go as far as to revoke a foreign national’s pass purely based on what they had said, as he had threatened, would be “unreasonable and disproportionate”.
“Yes, of course (he has the power to revoke the passes), that goes without saying.
“But we are questioning whether their content deserves such a revocation,” he said referring to those featured in Al Jazeera’s documentary.
“Having the power is a separate thing from whether that power is exercised properly,” Fahri said.
This comes after the documentary ‘Locked Up in Malaysia’s Lockdown’ had claimed Malaysia was discriminating against undocumented migrants in its Covid-19 prevention efforts, and supported this premise by quoting several apparently disgruntled foreign nationals staying here who condemned on camera the treatment they were purportedly afforded by the authorities.
Similar to other government figures and agencies who denounced the documentary’s contents, Khairul Dzaimdee did not mince his words when he warned that even long-term pass holders, such as those with student passes, temporary employment passes and residence passes, would not be spared if they made negative statements about the country.
Khairul Dzaimee had said those caught making negative remarks about Malaysia could see an instant revocation of their passes and suggested they could also face immediate deportation.
Echoing Fahri was academic director and senior law lecturer at the Advance Tertiary College, Daniel Abishegam, who cautioned that the director-general should wield his powers sparingly.
Abishegam said that such revocations by the director-general would only be warranted if there is an actual threat of prejudice to public order, public security, public health or morality present.
“If it’s just because it brings embarrassment to the government, then that should not be a valid reason (to revoke), especially if the report is factually accurate,” he said.
Lawyer New Sin Yew also agreed that the revocation of passes by the director-general has to be done with reason and for a legitimate purpose, adding the measures taken must also be justified with the objectives they seek to achieve.
“There is no law that prohibits or criminalises speech that damages Malaysia’s image; our current laws require something more extreme in order for it to attract criminal sanction.
“For example, inciting violence, inciting discrimination; that would be good grounds to cancel a pass given,” he explained.
Can I challenge the revocation?
Abishegam said that in the event someone finds themselves on the receiving end of Khairul Dzaimdee’s threats and sees their passes revoked, they may appeal the director-general’s decision.
But he said that as someone awaits the outcome of their appeal, the decision to revoke the pass will still apply notwithstanding the appeal process and impending decision, which means the implicated person will have to leave the country.
“If the appeal is successful, then they will be allowed to return,” he explained.
When asked to comment on the possible grounds that one could challenge such a revocation, Abishegam said the argument would most likely be hinged on the possibility that the director-general had taken into account inaccurate or irrelevant information to warrant the retraction of the passes.
“Also, they can challenge on procedural grounds, in that the notices were not properly served or signed etc,” he said.
Meanwhile, from a legal perspective, Fahri suggested that whether or not such powers can be exercised by the director-general purely based on someone’s words should be open to a more detailed interpretation through a judicial review by the courts.
He explained as per Article 10(1)(a) Federal Constitution, the right to freedom of speech and expression is only reserved for Malaysian citizens.
This, he said, could see the provision be interpreted as non-Malaysians having absolutely no right to freedom of speech and expression while living here.
“So it does seem to imply that you can restrict what they say,” he said when suggesting the disjunct with basic human rights and the need for a judicial review of the law.
“Like those Al Jazeera reporters who participated in producing the videos would be vulnerable; they can challenge it.
“But the practical reality is few do. They have to spend on legal fees, endure a torrid time here and have a poor relationship with the authorities because of their case,” he said.
Fahri then pointed out the myriad legal avenues and laws that the government and its agencies could invoke against those who allegedly made the negative statements, if the administration is out to quash the source information which they deem as inaccurate.
He said the government could, for example, take action against those making the statements for criminal defamation, or for false news and slander besides immediately invoking the Immigration Act.
“Expelling someone and depriving them of their livelihood or place of residence seems rather extreme,” he said.
Fahri said that instead of revoking the passes of foreign nationals here, the government could instead conduct an internal audit of its own to disprove the Al Jazeera report.
He said that any attempts to silence the media agency could be interpreted as an admission of guilt.
“The government can either carry out its own audit and show that Al Jazeera had no substance or attack how sloppy the documentary was.
“But to shut them up is a quick (option), but makes the government look defensive, and naturally, when you are defensive, people think you have something to hide,” he implied.
This as ministers, union groups, and even the police had their feathers ruffled following the findings depicted in the Doha-based agency’s documentary.
Among the reactions triggered by the documentary was Senior Minister Datuk Seri Ismail Sabri Yaakob’s demand for an apology from the news agency, adding the show was malicious and contained false allegations of the country’s Covid-19 containment measures.
Health Minister Datuk Seri Dr Adham Baba on Sunday also refuted the contents of the documentary, and stressed how Malaysia had never discriminated against undocumented migrants when enforcing the various stages of the movement control order and conducting tests to contain the pandemic.
The police yesterday revealed that investigations into the foreign news agency had begun as early as June 10, with five complaints received so far.
Federal Criminal Investigations Department director Commissioner Datuk Huzir Mohamed had even called the documentary baseless and one-sided.