Case No: Civil Petition for Leave to Appeal No. 1652 of 2009
Judge: Md. Muzammel Hossain,
Court: Appellate Division ,,
Advocate: Mr. Mahbubey Alam,Abdur Razzak,,
Citation: VII ADC (2010) 310
Case Year: 2010
Appellant: Government of Bangladesh
Respondent: Allama Delawar Hossain Sayedee and others
Subject: Constitutional Law,
Delivery Date: 2009-8-24
MM Ruhul Amin CJ
Md. Abdul Matin J
Shah Abu Nayeem Mominur Rahman J
BK Das J
Md. Muzammel Hossain J
Government of Bangladesh represented by the Secretary, Ministry of Home Affairs, Bangladesh Secretariat, Ramna, Dhaka
Allama Delawar Hossain Sayedee and others
August 24, 2009.
The High Court Division rightly observed that-
“If the Government wants to stop the petitioner from leaving the country then it must start a specific criminal case against him and get a custodial order by a court of law under the laws of the land. If the Government is allowed to restrict a person from going abroad at its discretion simply because he is going to make propaganda against Government Policy or because he may be required to stand trial at a future date, then Article 36 will become nugatory. This Court being the Guardian of the Constitution cannot condone such practice.”..... (13)
Mahbubey Alam, Attorney General with Murad Reza, Attorney, Attorney General, Ekramul Hoque, Assistant Attorney General, instructed by Sufia Khatun, Advocate-on-Record-For the Petitioner.
Abdur Razzak, Senior Advocate, instructed by Syed Mahbubar Rahman, Advocate-On-Record-For the Respondent No.1.
Not Represented- Respondent Nos. 2-4.
Civil Petition for Leave to Appeal No. 1652 of 2009
(From the judgment and order dated 12.08.2009 passed by the High Court Division in Writ Petition No.5127 of 2009)
Md. Muzammel Hossain J.
This petition for leave to appeal at the instance of the petitioner is directed against the judgment and order dated 12.08.2009 passed by a Division Bench of the High Court Division in Writ Petition No. 5127 of 2009 making the Rule absolute, which was filed challenging the action of the respondents of the writ petition on 24.07.2009, preventing the writ petitioner in leaving Bangladesh.
2. The respondent No.1 as petitioner filed Writ petition No. 5127 of 2009 before the High Court Division stating, inter alia, that the writ petitioner has impugned the action of the respondent in preventing him from leaving Bangladesh for the Kingdom of Saudi Arabia and the United Kingdom. The respondent No.1 has been prevented from leaving Bangladesh without any justification or explanation. No reason was offered by the petitioner or any Immigration Official either at the time of refusal or any time thereafter. Although the respondent No.1 possessed all relevant and valid travel documents (including a valid Bangladesh Passport, valid visas and a ticket), he was refused permission to leave Bangladesh. In preventing the respondent No.1 from leaving Bangladesh the petitioner acted in violation of the Bangladesh Passport Order, 1973 (hereinafter referred to as the said Order). Moreover, there is no criminal proceeding pending against the respondent No.1 Further, the actions of the petitioner are violative of the fundamental rights guaranteed under Articles 31,36and 41 of the Constitution. Hence, the respondent No.1 has filed the writ petition.
3. On 04.07.2009 the writ petitioner-respondent No.1 received an invitation (by facsimile message) from the "Cooperative Office for Call and Guidance" of the Ministry of Islamic Affairs of the Kingdom of Saudi Arabia to attend a Seminar to be held in Jeddah from 28th to 29th July 2009. The respondent No.1 was invited as the Chief Guest of the Seminar. Upon receipt of the invitation the respondent No.1 accepted the same or 05.07.2009 by telephone.
4. Since the respondent No.1 was scheduled to go to the Kingdom of Saudi Arabia in July 2009 as such the respondent No.1 also sought an appointment with a thoracic surgeon, Mr. Simon Jordan of the Royal Brompton Hospital in London in August, 2009. The respondent No.1 having undergone angioplasty and stenting procedures to his circumflex coronary artery in August, 1999 and a cardiac catheterization and further angioplasty in 2003 at the aforementioned Hospital, he was required in attend regular check up with the hospital. Pursuant to the respondent No.1's request, the hospital vide its letter dated 20.07.2009 scheduled an appointment with Mr. Simon Jordan, Thoracic Surgeon on 14.08.2009 at 11.00 A.M. The appointment letter was sent to the respondent No.1's usual residence during his stay in the United Kingdom.
5. Upon confirming his programmes and appointments in Saudi Arabia and United Kingdom, the respondent No.1 purchased a Saudia Airlines return ticket to fly from Dhaka to Jeddah and London. In accordance with the respondent No.1's schedule he was to leave for Saudi Arabia on 24.07.2009 and thereafter he was scheduled to go to London on 30.07.2009 and remain there up to 25.08.2009 for his medical check up. On 25.08.2009, the respondent No.1 was scheduled to leave London for Saudi Arabia and remain there till 20.09.2009 (i.e. during the month of Ramadan) to perform Umrah.
6. The respondent No.1 holds valid visas for entering both the Kingdom of Saudi Arabia and the United Kingdom. On 07.07.2009, the Embassy of the Kingdom of Saudi Arabia in Dhaka issued a visa to the respondent No.1 which allowed him dual entry into Saudi Arabia and to remain there for a period of 30 days upon each entry. Although, his diplomatic passport expired and as such was cancelled, vide an endorsement made on his current passport (being No. A 0156-95) at page 10 all his valid visas in the diplomatic passport were unaffected.
7. On 24.07.2009 at about 15.45 P.M. the respondent No.1 arrived at Zia International Airport in Kurmitola, Dhaka. At about 16.10 P.M. he completed check-in at the Saudi Arabian Airlines counter. At this stage he was issued Boarding Passes by the staff of Saudia Airlines. The Boarding Time was fixed at 16.15 P.M. on 24.07.2009.
8. While the Immigration Officer was scrutinizing the Bangladesh Passport and visa of the respondent No.1, the proforma-respondent No.4 (Officer-in-Charge (Immigration) of the Police Station at Zia International Airport) arrived at the Immigration Desk. The proforma respondent No. 4 took the Bangladesh Passport of the respondent No.1 and informed him that he had instructions from higher authorities not to permit him to leave Bangladesh.
9. The action of refusing to allow the respondent No.1 to leave the country is arbitrary and without justification. No reasons (either oral or written) were provided by the respondent No. 4, the Immigration Officer or any other officer at the Zia International Airport as to why the respondent No.1 was not permitted to leave Bangladesh.
10. Challenging the action of refusing to allow the respondent No.1 to leave the country, the respondent No.1 filed Writ Petition No.5127 of 2009 before the High Court Division wherein on 02.08.2009 Rule was issued and the service of notice was dispensed with and the High Court Division by the judgment and order dated 12.08.2009 made the Rule absolute.
11. Being aggrieved by the aforesaid judgment and order dated 12.08.2009 passed by the High Court Division the petitioner preferred this leave petition before this Division.
12. We have heard Mr. Mahbubey Alam, the learned Attorney General appearing for the petitioner, and Mr. Abdur Razzak, the learned Advocate appearing for the respondent No.1 and perused the impugned judgment and order passed by the High Court Division and also other materials available on record.
13. The High Court Division having considered the submissions advanced on behalf of both the parties and the materials on record observed that the learned Attorney General in his long submissions has not been able to cite a single law on the basis of which the respondent No.1 is being restricted from leaving the country and the fact that the trial of war criminals is about to start and that the respondent No.1 is likely to be put on trial for war crimes committed during the liberation war of Bangladesh in 1971 are insufficient to restrain the petitioner from leaving the country. The High Court Division also noticed that the respondent No.1 filed Supplementary-Affidavit having denied his involvement in committing war crimes during the liberation war in 1971 or at any other time. The High Court Division observed that it appreciate the Government's concern for holding war criminal's trial but that cannot condone the Government's act to restrict the citizens from going abroad to perform their religious rites for example, Umrah or to get medical check up or for any other humanitarian reason. The High Court Division rightly observed that-
"If the Government wants to stop the Petitioner from leaving the country then it must start a specific criminal case against him and get a custodial order by a court of law under the laws of the land. If the Government is allowed to restrict a person from going abroad at its discretion simply because he is going to make propaganda against Government policy or because he may be required to stand trial at a future date, then Article 36 will become nugatory. This Court being the Guardian of the Constitution cannot condone such practice."
14. The High Court Division also considered the submissions of Mr. Abdur Razzak, the learned Advocate for the respondent that the respondent will return to the country just after next Ramadan.
15. In the above facts and circumstances, we are of the view that the High Court Division having considered all the materials on record and the submissions advanced on behalf of both the parties arrived at a correct decision which does not require any interference by this Division.
Accordingly, the leave petition is dismissed.