Federal Court says levy does not impinge on right to travel abroad, dismisses lawyer's leave to appeal

A three-member bench of the Federal Court comprising Justices Tan Sri Nallini Pathmanathan, Datuk Seri Hasnah Mohammed Hashim and Datuk 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 imposition of 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.

"The ability to depart from a country is not an issue. So Article 5 (1) of the Federal Constitution in relation to right to life and personal liberty is not engaged," she said, adding 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 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 had 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 said the Departure Levy Act and Departure Levy Order 2019 were invalid and cannot 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, was 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.

In his leave to appeal application, Kengadharan wanted the court to decide on several questions of law, among others pertaining to issues of personal liberty under Article 5.

Following today's decision, the law imposing departure levy on travellers going overseas, which was passed and came into force in 2019 under the Pakatan Harapan government, still stands.

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