Justice Azman Abdullah said a 1979 Federal Court ruling in the case of Public Prosecutor vs Loh Wai Kong, which held that the authorities could place restrictions on such a right, was still good law.
In that case, Loh had failed to secure a ruling that Article 5 of the Federal Constitution gave Malaysian citizens a fundamental right to travel overseas.
“The decision in (Loh’s case) remains valid and relevant to be applied in our case,” Azman said when reading out the brief grounds of the court’s unanimous decision to dismiss lawyer R Kengadharan’s suit to challenge the constitutionality of the departure levy during an online proceeding today.
“We find there is no merit in the appeal which warrants appellate intervention.”
The bench, which also included Justices Yaacob Sam and Nazlan Ghazali, had reserved their judgment after hearing oral submissions of the parties on Jan 4.
Azman said Article 5(1) of the constitution was only confined to the liberty of the person.
He said the provision only guaranteed an individual’s freedom from unreasonable detention, the right to be informed of the reason for his arrest, and his right to be represented by a lawyer of his choice.
“This involves the rights of a person or (the) body of the individual and does include the right to travel overseas and a right to a passport,” he said.
Azman said while Article 9 guaranteed freedom to move and reside anywhere within the country, citizens were still subject to restrictions under immigration laws.
“In our judgment, a citizen has no constitutional right to leave the federation and travel overseas, and one could not enjoy these rights outside the country,” he said.
He said the Immigration Act 1959 exists to regulate various aspects relating to immigration, including the admission into and departure out of Malaysia.
“And now, we have the Departure Levy Act 2019 and the Departure Levy Order 2019 (which were) enacted to impose a levy when a person leaves Malaysia.”
Kengadharan’s lawyer, the late Gopal Sri Ram, had submitted on Jan 4 that the High Court, which dismissed the suit in 2020, erred by not giving the expression “personal liberty” in Article 5(1) a wider interpretation.
Sri Ram died on Jan 29.
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.
Kengadharan was seeking a declaration that the Act and Order breached Article 5(1) of the constitution and were unenforceable.
In his affidavit in support of 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.
Departure levies of between RM8 and RM150 were announced by then finance minister Lim Guan Eng on Aug 2, 2019. The levies were imposed beginning September that year.