Appeals court throws out lawyer's bid to challenge departure levy

 

A lawyer lost his appeal in the Court of Appeal today to challenge the imposition of a departure levy on Malaysians travelling overseas.

A three-member bench comprising judges Yaacob Md Sam, Mohd Nazlan Mohd Ghazali, and Azman Abdullah dismissed R Kengadharan’s appeal with no order as to costs.

Judge Azman, who delivered the court’s unanimous decision held that Kengadharan’s appeal did not have merits that warranted appellate intervention.

He said the case law in the Government of Malaysia vs Loh Wai Kong, where the Federal Court ruled that the right to travel abroad is not absolute, is valid and applicable to this case.

In the 1979 case, the Federal Court dismissed Loh’s application for a declaration that Malaysian citizens had a fundamental right under Article 5 of the Federal Constitution to travel overseas.

In the court proceeding conducted online today, judge Yaacob, as well as Kengadharan’s lawyer A Srimurugan, also expressed their condolences to the family of the late former Federal Court judge Gopal Sri Ram who passed away recently. 

Sri Ram was the counsel for Kengadharan when the appeal was heard on Jan 4, this year. He argued that Loh’s case was wrongly decided and that the right to travel abroad is a fundamental right.

Kengadharan was appealing against the High Court’s decision on Feb 27, 2020, to dismiss his suit, in which he had named the finance minister and the government as respondents.

In his originating summons filed in August 2019, Kengadharan sought a declaration that the Departure Levy Act 2019 and the Departure Levy Order 2019 were in breach of his fundamental right to travel. 

He had 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, was a violation of fundamental liberties.

Kengadharan also said 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.

In today's proceedings, lawyer Shamsher Singh Thind also represented Kengadharan while federal counsel V Krishna Priya appeared for the finance minister and the government.

- Bernama