Apex Court Denies Appeal Over Validity Of Departure Levy

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Malaysians travelling abroad will still need to pay a departure levy before being allowed to do so.
The apex court this morning dismissed an application by lawyer R Kengadharan for leave to commence an appeal over the validity of the Departure Levy Act 2019 and the Departure Levy Order 2019.
The unanimous decision was delivered by a three-person bench chaired by Federal Court judge P Nallini. The other judges are Hasnah Mohammed Hashim and Nordin Hassan.
The High Court and Court of Appeal denied Kengadharan's legal challenge, in which he claimed the departure levy law contravened his fundamental right to travel abroad as contained in the Federal Constitution.
During the Federal Court online proceedings today, Nallini ruled that the Departure Act among others, does not impinge on an individual’s constitutional right to travel overseas.
She said it merely provides for the levying of tax on Malaysians wishing to travel abroad, which complies with the Federal Constitution.
Nallini noted that Kengadharan should not have relied on the case law of the Government of Malaysia vs Loh Wai Hong.
She added the case law is not a good one in illustrating the issue of whether a departure levy contradicts a Malaysian’s fundamental right to travel abroad.
In the 1979 legal precedent, the then Supreme Court ruled that the right to travel abroad is not absolute.
It dismissed Loh’s application for a declaration that Malaysian citizens had a fundamental right under Article 5 of the Federal Constitution to travel overseas.
The Federal Court in dismissing Kengadharan’s application for leave to appeal, made no order as to costs as it is a case of public interest.
Kengadharan was represented by counsel A Srimurugan and Shamsher Singh Thind. Senior federal counsel Suzana Atan appeared for the two respondents: the finance minister and the federal government.
In his originating summons filed in August 2019, Kengadharan sought a declaration that the Departure Levy Act and the Departure Levy Order were in breach of his fundamental right to travel under Article 5 (1) of the Federal Constitution, and thus cannot be enforced.
In his affidavit to support the suit, Kengadharan claimed any form of tax imposed, including on those who wished to go on a pilgrimage or perform the haj, violated fundamental liberties.
Kengadharan also claimed any imposition of a departure tax, in addition to the existing service and airport taxes, would be burdensome and harsh.
The departure levy was imposed by the then-Pakatan Harapan government in 2019.
On Feb 27, 2020, the High Court dismissed Kengadharan’s legal action. The Court of Appeal denied his appeal on March 14 this year. - Mkini

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