KUALA LUMPUR: The High Court has dismissed a suit by a lawyer who sought a declaration that the Departure Levy Act and the Departure Levy Order breached his fundamental right to travel.
Judge Mariana Yahaya said this was because she was bound by a 1979 Federal Court ruling in PP vs Loh Wai Kong, which held that the authorities could place restrictions on such a right.
The judge said the legal principle in Loh’s case was further affirmed in 2017 by the Court of Appeal in the case of Tony Pua against the director-general of the Immigration Department.
“The judge, however, did not order costs to be paid to the government as it was a public interest case,” lawyer A Srimurugan told reporters on the verdict delivered in the judge’s chambers today.
Srimurugan, who represented lawyer R Kengadharan in the suit, said he had instructions to file an appeal.
“We have to take it up in order to revisit Loh’s case,” he added.
Loh had sought a ruling that Malaysian citizens are entitled to travel overseas as a fundamental right under Article 5 of the Federal Constitution.
However, the Federal Court bench, led by the then Lord President Mohamed Suffian Mohamed Hashim held in 1979 that the right to personal liberty under Article 5 was only to challenge the authorities for any unlawful detention.
Kengadharan, who named the then finance minister Lim Guan Eng and Putrajaya as defendants, claimed the Departure Levy Act and the Departure Levy Order violated his fundamental right to travel.
He sought 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 fundamental liberties.
He also said any imposition of a departure tax, in addition to the existing service and airport taxes, would be burdensome and harsh.
On Aug 2 last year, Lim said travellers flying out of the country would have to pay between RM8 and RM150 in departure levies, beginning Sept 1.