Prohibition of Banishment and Freedom of Movement: Article 9
Prohibition of Banishment and Freedom of Movement: Article 9
Article 9
Learning Outcome…
Article 9
• 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
The appellant was subject to a Involved a permanent resident. The burden is squarely on the
banishment order and he The applicant was not a citizen applicant’s shoulder to prove
challenged the validity of this but was a person who had that he belongs to a citizenship
order claiming that he was a been granted only an entry category;
citizen. permit and allowed permanent
He managed to prove that his residence in the country. • citizens of which cannot be
mother was born in the Held: the onus of proof lies banished; or
Federation and he was a child upon the applicant to prove • the order of deprivation was
of a person born in the that she was a person in in some substantive or
Federation and qualifies respect of whom a Banishment procedural way illegally
therefore as a citizen. Order could not be made; the
applicant not within the made.
Held: He cannot be banished category of exempted persons A citizen’s protection against
under the Act. banishment must be read in
* the PR holder can still be the light of the government’s
banished (not excluded by the power to terminate the
Banishment Act) 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.
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