Departure tax not against the law, court told

R Kengadharan (right) with A Jeyaseelan (left) and A Srimurugan outside the High Court.

KUALA LUMPUR: Putrajaya’s decision to impose the departure levy on overseas travellers, including those performing pilgrimages, is constitutional as it was approved by Parliament, the High Court heard today.

Senior federal counsel Suzana Atan said Article 96 of the Federal Constitution only stated that no tax or rates should be levied except as provided by federal law.

“Under Article 160, federal law is a legislation that is passed by Parliament,” she said in her submission before judge Mariana Yahaya.

She said the Departure Levy Order 2019 made under the Departure Levy Act 2018 also empowered the authorities to collect the tax from those leaving the country.

Suzana said plaintiff R Kengadharan’s contention that the levy imposed violated his constitutional right to travel under Article 5 was misplaced.

She said that provision merely stated that “no person shall be deprived of his personal liberty save in accordance with the law”.

“The denial of personal liberty only comes into play when someone is arrested and detained unlawfully,” she added.

Suzana said the Federal Court in the 1979 case of PP versus Loh Wai Kong had ruled that the authorities could place restrictions on the right to travel.

However, lawyer A Srimurugan submitted that the ruling in Loh’s case was no longer good law because the court then had adopted a restrictive approach in dealing with Article 5.

“In view of the apex court rulings over the last two years, the bench now has adopted a more liberal approach in interpreting Article 5,” said the lawyer who appeared with A Jeyaseelan.

He said Parliament could not pass laws that included the Departure Levy Act which went against Article 5.

“The legislature cannot pass laws that are in violation of the constitution which is the supreme law of the land,” he said.

Kengadharan, in his originating summons filed at the High Court in August, said the Departure Levy Act and the Departure Levy Order breached his fundamental right to travel.

In naming Finance Minister Lim Guan Eng and Putrajaya as defendants to his action, he is seeking a declaration that they breached Article 5 (1) of the constitution and cannot be enforced.

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 the fundamental liberties.

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

On Aug 2, Lim said travellers flying out of the country would have to pay between RM8 and RM150 in departure levies beginning Sept 1.

The rates will depend on the destination and the class of travel.

Mariana has reserved judgment for Feb 27.