PUTRAJAYA (Jan 4): A three-member Court of Appeal (COA) bench has fixed March 14 this year to deliver its decision on an appeal by lawyer R Kenghadharan against the imposition of a departure levy by the Government for overseas travel.
This follows the bench led by COA judge Datuk Yaacob Md Sam having deferred in giving its decision after hearing submissions on Wednesday (Jan 4) from Datuk Seri Gopal Sri Ram and A Srimurugan for Kenghadharan, and senior federal counsel Suzana Atan for the Ministry of Finance and the Government, which are the respondents in the case.
The other two judges are COA judge Datuk Mohd Nazlan Mohd Ghazali and High Court judge Datuk Azman Abdullah.
Sri Ram told the bench that the imposition of the levy must not impact one’s fundamental rights to travel abroad.
The former Federal Court judge told the appellate bench that this court must decide whether the right to travel abroad is a fundamental right, and secondly, whether the imposition of the Departure Levy Act 2019 is considered a proportionate legislative response to impact on that right.
The imposition of the levy was imposed by the then Pakatan Harapan government, which was a levy or tax on Malaysians travelling overseas.
Kenghadharan filed a challenge to the law, where he sought a declaration that the orders breach Article 5 (1) of the Federal Constitution and cannot be enforced.
In his affidavit to support the suit, Kengadharan 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.
Sri Ram said the High Court judge had erred in determining that the right to travel abroad is not an absolute right — and hence determining that the legislation in imposing the levy is constitutional — in her decision to strike out Kenghadharan's judicial review challenge. Sri Ram added that the precedent decided in Loh Wai Kong's case was recognised as wrongly decided, and this was also stipulated in Maria Chin Abdullah's case.
Citing the decision in Lee Kwan Woh versus the public prosecutor, Sri Ram said that the views expressed in the case should be considered worthless.
“Given the outcome, the wider implication is that Loh's [case] does not serve as a useful guide on how the constitutional issue raised in this case of the travel ban is to be addressed,” he added.
Suzana in her reply said the Departure Levy Act 2019 was validly enacted, as it follows Article 96 of the Federal Constitution, where the legislature had passed the law.
“The law was validly made, and the Act, which highlights the imposition of the departure levy, is valid and in accordance with Article 96. There is no issue of the Act being unconstitutional,” she added.
Furthermore, she said the High Court had ruled that the right to travel abroad is not an absolute right.
On Feb 27, 2020, the High Court dismissed Kenghadharan’s judicial review application to challenge the imposition of the tax, when then High Court judge Datuk Seri Mariana Yahya (now a COA judge) ruled that the court was bound by the decision of the Federal Court in former Damansara Member of Parliament Tony Pua's case and Loh’s case, where the right to travel overseas is not absolute.
In Loh’s case, the Federal Court ruled that the right to travel abroad is not absolute, and this was upheld in Pua’s case, where he was also refused leave to appeal against the immigration director general’s instructions to ban him from travelling abroad.