The right to travel abroad is not protected under art 5(1) of the Federal Constitution, confirming the constitutionality of the Departure Levy Act 2019.

Introduction

[1] This is an appeal against the decision of the High Court dated 27 February 2020 in respect of the constitutionality of the Departure Levy Act 2019 [Act 813] and Departure Levy (Rate of Departure Levy) Order 2019 (PU(A) 213 Order) on the ground that it contravenes the constitutional right guaranteed by art 5(1) of the Federal Constitution to travel abroad.

[2] We heard the appeal on 4 January 2023 and the appeal was adjourned for decision. We delivered the decision on 14 March 2023. Having duly considered the appeal records and submissions of the respective counsel, we had unanimously dismissed the appeal of the Appellant. These are the reasons for our decisions.

[3] For ease of reference, parties will be referred to as they were in the proceedings before the High Court.

Background Facts

[4] In the High Court, the Plaintiff who is a practising advocate & solicitor had filed suit against the Respondents/Defendants whereby the Plaintiff sought to obtain the following orders via the Amended Originating Summons ("AOS"):

(a) a declaration that the Departure Levy Act 2019 (Act 813) and the Departure Levy (Rate of Departure Levy) Order 2019 (PU(A) 213) is in conflict with art 5(1) of the Federal Constitution and therefore is invalid, void and could not be enforced, with immediate effect;

(b) no order as to costs; and

(c) other relief deems fair, fit and just by this Honourable Court.

[5] In the AOS and as later elaborated in the affidavit, the Plaintiff averred that the levy imposed by the Defendants seriously interferes with and violates his constitutional rights guaranteed by art 5(1) of the Federal Constitution. In particular, the Plaintiff averred that he has constitutional guaranteed rights to travel abroad and any direct or indirect violation of such right is unconstitutional, null and void.

[6] The Defendants, on the other hand, submits that Act 813 and PU(A) 213 Order made thereunder are constitutional, validly enacted and enforceable. Reasons being are as follows:

(a) Act 813 validly enacted pursuant to art 96 of the Federal Constitution which provides that "no tax or rates shall be levied except as provided by federal law";

(b) PU(A) 213 Order is intra viresAct 813 whereby it is made under the provision of s 11 of Act 813 which give Ministerial power to fix the rate of departure levy or to vary or amend the rate by order published in the Gazette;

(c) the Plaintiff's reliance on art 5(1) of the Federal Constitution is misconceived.

Decision Of The High Court

[7] On 27 February 2020, the learned High Court Judge dismissed the Plaintiff's AOS. The main reason given is because art 5(1) of the Federal Constitution embodies only the constitutional protection in relation to personal liberty. It excludes any other rights such as right to a passport or a right to travel.

[8] The learned High Court Judge in her judgment agrees with the Defendants' submission that the case of Government of Malaysia & Ors v. Loh Wai Kong, is still relevant and does not intend to depart from the aforesaid decisions. Therefore, it is concluded that Act 813 and PU(A) 213 Order are valid and enforceable.

[9] Dissatisfied with the decision, the Plaintiff filed this appeal.

The Appeal

[10] The grounds of appeal are as per the Memorandum of Appeal which reads as follows:

"[1] Hakim Mahkamah Tinggi yang bijaksana kilaf dari segi undang-undang dalam menolak Saman Pemula terpinda bertarikh 11 September 2019 tanpa sebarang perintah terhadap kos.

[2] Hakim Mahkamah Tinggi yang bijaksana kilaf dari segi undang-undang dalam merumuskan dan/atau menyimpulkan bahawa ss 3, 9, 10, Akta Levi Pelepasan 2019 (Akta 813) tidak bercanggah d