COA upholds departure levy, says travelling overseas is not a right

Bloomberg filepix for illustration purpose only.

Bloomberg filepix for illustration purpose only.

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PUTRAJAYA (March 14): The departure levy that is imposed on Malaysians travelling overseas since 2019, still stands.

This follows the Court of Appeal on Tuesday (March 14) dismissing the appeal by lawyer R Kengadharan, who challenged the imposition of a departure levy by the then Pakatan Harapan government in 2019, for Malaysians wanting to travel overseas.

A three-member bench led by Court of Appeal judge Datuk Yaacob Md Sam, unanimously dismissed the appeal by the lawyer.

Datuk Azman Abdullah, the third member of the bench who wrote the unanimous decision, said there is no merit in the appeal that warranted appellate intervention.

“Hence, we dismissed the appeal and made no order as to costs,” judge Azman said.

The second judge who heard the case is Datuk Mohd Nazlan Mohd Ghazali.

Earlier, the bench and also the lawyer A Sri Murugan who appeared for Kengadharan, expressed condolences to the family of the late former Federal Court judge Datuk Gopal Sri Ram, who was the counsel for the appellant (Kengadharan) when the appeal was heard on Jan 4.

Azman, in the decision, said the Federal Court decision on Loh Wai Kong applies as the appellate court ruled that a right to travel overseas is not absolute.

The judge says the right to travel as enshrined in Article 9 only applies within Malaysia alone.

“This only applies to Malaysians to move freely in Malaysia,” Azman said.

He added that it is observed that an individual right to travel does not include the right to travel overseas and also to have a passport.

He said the so-called restriction (imposing the levy) is not a constitutional right to leave the country but would be governed by the law, as in this case with the Departure Levy Act 2019.

Azman also said that the recent landmark decision in Alma Nudo which refers to the decision of Lee Kwan Woh was purportedly wrongly decided as claimed by the appellant (Kengadharan), is not applicable in this case.

“We are of the view that it does not overrule Loh Wai Kong (which the bench considers is still good law),” the judge said.

At the last session, Sri Ram had argued that Loh Wai Kong’s case was wrongly decided and hence, for this reason alone, the departure levy imposed was not proportionate to the expectation of Malaysians and considered unconstitutional.

The Loh Wai Kong’s vs Public Prosecutor is a case where Loh sought a ruling or declaration from the courts that Malaysian citizens were entitled to travel overseas, as it being a fundamental right as accorded under Article 5 of the Constitution regarding the liberty of the person.

However, in Loh’s case, the apex court ruled that no such right (travelling overseas) existed.

Kengadharan, a DAP member, filed a challenge to the Departure Levy Act 2019, wherein 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.

On Feb 27, 2020, the High Court dismissed Kengadharan’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.

Besides Sri Murugan, lawyer Dr Shamsher Thind appeared for Kengadharan, while Federal Counsel V Krishna Priya appeared for the government.

Read also:
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Lawyer fails to challenge departure levy imposition

Surin Murugiah