Lawyer Gopal Sri Ram said the High Court had in 2020 erred by not giving the expression “personal liberty” in Article 5(1) of the constitution a wider interpretation.
He said this was because the judge believed herself to be bound by a 1979 Federal Court ruling in PP vs Loh Wai Kong, which the judge interpreted to mean that the authorities could restrict the right to travel.
The High Court judge also ruled that the legal principle in Loh’s case was further affirmed by in 2017 by the Court of Appeal in a case brought by Tony Pua against the director-general immigration, said Sri Ram.
In the 1979 case, Loh’s application for a ruling that Malaysian citizens had a fundamental right under Article 5 of the constitution to travel overseas was dismissed by the Federal Court.
However, Sri Ram today submitted that Justice Mariana Yahya (now a Court of Appeal judge) ought not to have relied on Loh’s case which was decided on an entirely different point, namely jurisdiction.
Sri Ram was submitting in an appeal brought by lawyer R Kengadharan, who claimed the Departure Levy Act 2019 and the Departure Levy Order 2019 enacted under it violated his client’s fundamental right to travel.
In reply, senior federal counsel Suzana Atan said the act and order were the result of a policy decision made by the government to enact a law which imposed the levy.
“This law was made pursuant to Article 96 of the constitution,” she said.
Suzana said the 1979 Federal Court case had ruled that Article 5 did not confer any fundamental right on citizens to travel overseas.
Kengadharan is seeking a declaration that the act and order breached Article 5(1) of the constitution and were unenforceable.
In his affidavit to support the suit, he said any form of tax imposed including on those who wished 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, 2019, then finance minister Lim Guan Eng announced that travellers flying out of the country would have to pay between RM8 and RM150 in departure levies, beginning the following month.
The bench hearing the appeal, led by Justice Yaacob Sam and also comprising Justices Nazlan Ghazali and Azman Abdullah, will deliver their ruling on March 14.