Federal Court affirms levy does not impinge on right to travel abroad

PUTRAJAYA: A lawyer’s legal challenge to the imposition of a departure levy on Malaysians travelling overseas has come to an end as he failed to get leave from the Federal Court to proceed with his appeal.

A three-member bench of the Federal Court comprising Justices Nallini Pathmanathan, Hasnah Mohammed Hashim and Nordin Hassan dismissed R. Kengadharan’s application for leave to pursue his appeal.

In delivering the court’s decision, Justice Nallini said the law on the imposition of a departure levy is valid.

She said the Departure Levy Act 2019 does not impinge on the right of a person to travel abroad, adding that the Act merely levies tax on a person who departs from the country, Bernama reported.“The ability to depart from a country is not an issue. So Article 5 (1) of the Federal Constitution in relation to the right to life and personal liberty is not engaged,” Justice Nallini said.

She added that Kengadharan could not be given leave to appeal as he failed to meet the requirement under Section 96 (b) of the Courts of Judicature Act 1964.

Justice Nallini said that Kengadharan’s case is not a fit case to revisit and challenge the case law authority in the Government of Malaysia vs Loh Wai Kong.In the 1979 case, the Federal Court dismissed Loh’s application for a declaration that Malaysian citizens had a fundamental right under Article 5 of the Federal Constitution to travel overseas.

In his originating summons, naming the Finance Minister and the government as defendants, Kengadharan claimed that the Departure Levy Act and Departure Levy Order 2019 were invalid and could not be enforced as the Act breached his fundamental right to travel.

In his affidavit to support the suit, he said any form of tax imposed, including on those who wish to go on a pilgrimage or to perform the haj, is a violation of fundamental liberties.

Kengadharan also said any imposition of a departure tax, in addition to the existing service and airport taxes, would be burdensome and harsh.

Lawyers A. Srimurugan and Dr Shamsher Singh Thind represented Kengadharan, while senior federal counsel Suzana Atan appeared for the Finance Minister and the government.