Hussain Muhammad Ershad Vs. Bangladesh and others, II ADC (2005) 371

Judge: Latifur Rahman ,

Court: Appellate Division ,,

Advocate: Mr. Mahbubey Alam,Mr. Rafique-ul-Huq,,

Citation: II ADC (2005) 371

Case Year: 2005

Appellant: Hussain Muhammad Ershad

Respondent: Government of Bangladesh

Subject: Constitutional Law,

Delivery Date: 2000-08-16

Supreme Court
Appellate Division
(Civil)
 
Present:
Latifur Rahaman CJ
Bimalendu Bikash Roy Chowdhury J
AM Mahmudur Rahman J
Mahmudul Amin Chowdhury J
Kazi Ebadul Hoque J
 
Hussain Muhammad Ershad
…….........Appellant
Vs.
Bangladesh and others
.................Respondents
 
Judgment
August 16, 2000.

Constitution of Bangladesh, 1972
Articles 31,36,44,101(1),102(1)(2)(a)(i)
But in the cases where the domestic laws are clear and inconsistent with the international obligations of the state concerned, the national courts will be obliged to respect the national laws, but shall draw the attention of the law-makers to such inconsistencies. …. (2)
 
Cases Referred to:
Government of Bangladesh Vs. Zeenat Hossain 1 BLC (AD) 89; State Vs. M. M. Rahmatullah; Satwant Singh vs. D. Ramarathnam, Assistant Passport Officer, New Delhi and others, AIR (1967) (SC) 1836; Province of Sind v. Public at Large PLD 1988 (SC) 138.
 
Lawyers Involved:
Barrister Rafique-Ul-Huq, Senior Advocate (Khandker Mahbub Hossain, Senior Advocate with him) instructed by Mvi. Md. Wahidullah, Advocate-on-Record - For the Appellant.
Mahbubey Alam, Additional Attorney-General instructed by AKM Shahidul Huq, Advocate-on-Record - For Respondent No. 1.
Not Represented - Respondent Nos. 2-4.
 
JUDGMENT
 
Latifur Rahman CJ.
 
I have gone through the judgment of my learned brother A.M. Mahmudur Rahman, J. and the supple­ment thereto written by my learned brother B.B. Roy Choudhury, J. I agree with them.
 
Bimalendu Bikash Roy Choudhury J.
 
I have had the advantage of reading the judgment in draft of my learned bother A.M. Mahmudur Rahman, J. I agree with his conclusion but I like to add a few words as to the applicability of Article 13 of the Universal Declaration of Human Rights to the right of an individual to travel beyond the border of his state.
 
3. True it is that the Universal Human Rights norms, whether given in the Universal Declaration or in the Covenants, are not direct­ly enforceable in national courts. But if their provisions are incorporated into the domestic law, they are enforceable in national courts. The local laws, both constitutional and statutory, are not always in consonance with the norms con­tained in the international human rights instru­ments. The national courts should not, I feel, straightaway ignore the international obligations, which a country undertakes. If the domestic laws are not clear enough or there is nothing therein the national courts should draw upon the principles incorporated in the international instruments. But in the cases where the domes­tic laws are clear and inconsistent with the international obligations of the state concerned, the national courts will be obliged to respect the national laws, but shall draw the attention of the law makers to such inconsistencies.
 
4. In the instant case the universal norms of freedom respecting rights of leaving the country and returning have been recognized in Article 36 of our Constitution. Therefore there is full application of Article 13 of the Universal Declaration of Human Rights of the facts of this case.
 
A.M. Mahmudur Rahman J.
 
This appeal by leave is directed against the judgment dated 14 June, 2000 rejecting the Writ Petition No. 3159 of 2000 summarily.
 
6. The appellant, an ex-President of the People's Republic of Bangladesh and an elect­ed Member of the Parliament of the Jatiya Party ticket, filed the Writ Petition against the order dated 5.6.2000 of taking and/or impounding his passport at ZIA (Zia International Airport) by respondent No. 4, the Assistant Superintendent of Police (Immigration) stating that he had a angiogram and angio-plastic in King Faisal Specialized Hospital and Research Centre in Saudi Arabia before going for treatment in London and when he was going to London by British Airways on 5.6.2000 for medical check up in London Clinic, London he was stopped from going abroad and his passport was seized by, respondent No. 4 and for seizure of the pass­port he gave a receipt wherein it was stated that by order dated 1.6.2000 the Ministry of Home Affairs of the People's Republic of Bangladesh stopped the appellant to leave Bangladesh but neither the said order nor any order passed under Bangladesh Passport Order, 1973 was served upon him. He stated further that his pass­port also was impounded on 3.11.99 when he was going to China at the invitation of the Chairman of the Communist Party and he filed Writ Petition No. 4259 of 1999 challenging that order of impounding his passport and the High Court Division issued a Rule Nisi which was made absolute on contest on 1.3.2000 declaring the order of seizure of the passport as illegal, mala fide and without lawful authority and the High Court Division ordered the respondents to return the passport to the appellant within 2 weeks. But respondent No. 1 without returning his passport as directed by the High Court Division filed a provisional application for leave to appeal against that judgment and order and prayed for staying operation of the same but this Division on 20.4.2000 refused the prayer. But thereafter regular leave petition was filed by the Government and the judgment of the High Court Division reached its finality. It is further stated that as the respondent-govern­ment did not return the passport the appellant filed contempt Petition No. 28 of 2000 against the respondents. However, on return of the passport on 15.5.2000 by the Government the contempt petition was not pressed.
 
7. The appellant challenged the order dated 5.6.2000 of impounding of the passport before the Writ Bench on the grounds of violation of fundamental right as guaranteed under Articles 31, 32 and 36 and of the Constitution as well on the ground of violation of Universal Declaration of Human Rights as recognized under Article 13 of the Universal Declaration of Human Rights and also on violation of principle of natural justice and on mala fide. The High Court Division by the impugned judgment and order summarily dismissed the Writ Petition.
 
8. The leave was granted to consider as to whether the High Court Division was wrong in not holding that seizure/impounding of the passport was violative of Articles 31 and 36 of the Constitution, whether the order made by respondent is in conformity with the provision of Article 7(4) of Bangladesh Passport Order, 1973 and sustainable in law and whether the High Court Division was wrong in holding that the writ petition was not maintainable as peti­tioner did not avail himself of the alternative remedy as provided in the Bangladesh Passport Order, 1973.
 
9. Mr. Rafiqul Huq, learned Advocate for the appellant submitted that the High Court Division acted illegally in rejecting the Writ Petition in limine in that the whole object of stopping the appellant from leaving Bangladesh was violative of his fundamental right as guar­anteed under Article 36 of the Constitution to the detriment to his health. Secondly, as the Writ Petition was filed under Article 102(1) and (2) (a) (i) read with Article 44 of the Constitution for enforcement of his fundamen­tal right the question of alternative remedy does not arise. In this regard he also submitted that where the passport seized on the basis of order passed by the Secretary, Ministry of Home Affairs was not shown or served by the respon­dent No. 4 upon the appellant there was no scope to file appeal as contemplated under Article 10 of the Passport Order, 1973 and no question of availing alternative remedy arises. He further submitted that the High Court Division not only failed to consider that the passport was impounded on an illegal order passed by an authorized person but as well came to a wrong finding that the reason for impounding the passport fits in with the provisions of the Bangladesh Passport Order without considering that the impugned action was taken in violation of mandatory requirements of Article 7(4) of the Bangladesh Passport Order, 1973 which mandates recording in writing a brief statement of the reasons for impounding the passport and as such the impugned judg­ment and order is liable to be set-aside. He also submitted that the passport of the Appellant was taken away without giving any opportunity of personal hearing in violation of the principle of nature justice and where in gross violation of the principle of natural justice an order passed mala fide is challenged in writ jurisdiction the writ petitioner need not exhaust the alternative remedy in that a mala fide order itself is without jurisdiction. Mr. Huq urged that in this instant case the High Court Division in exercise of its writ jurisdiction not only is required to declare the order of impounding of passport illegal but as well to direct the Government to allow the appellant to leave the country for his medical treatment as guaranteed in Article 36 of the Constitution. Relying upon Article 104 of the Constitution he asked us to give a direction to the Government to allow the appellant to go abroad for treatment according to his own choice in order to do complete justice as guaranteed under Article 36 of the Constitution and also sought support in this regard from Article 13 of the Universal Declaration of Human Rights.
 
10. Mr. Mahbubey Alam, learned Additional Attorney-General in repelling the submissions of Mr. Huq, on the other hands, submitted that Sub-Article (2) of Article 7 of Bangladesh Passport Order, 1973 empowers the passport authority to impound a passport and in the instant case, the passport having been impound­ed under the provision of said Order, the order is not violative of Article 31 of the 36 of the Constitution inasmuch as the order was passed in exercise of the power under clause (c) of Sub-Article (2) of Article 7 of the Bangladesh Passport Order, 1973 in the interest of sover­eignty, integrity or security of the country or in public interest the authority is not require to state any reason for impounding a passport. He further submitted that as Article 10 of the Passport Order provides for an alternative rem­edy by way appeal against the order impound­ing passport the writ petition was not competent without exhausting the alternative remedy and the High Court Division rightly held that the writ petition is not maintainable.
 
11. Article 36 of the Constitution of the People's Republic of Bangladesh reads-
 
36. Subject to any reasonable restrictions imposed by law in the public interest, every citizen shall have the right to move freely throughout Bangladesh, to reside and settle in any place therein and to leave and re-enter Bangladesh.
 
12. No doubt for the right guaranteed in Article 36 a citizen can freely move throughout Bangladesh and to leave and re-enter Bangladesh. But that right is not an absolute one and is subject to reasonable restriction imposed by law. Bangladesh Passport Order, 1973 certainly is a law and Article 7(2) (c) of the Bangladesh Passport Order, 1973 empowers a passport authority to impound or cause to be impounded or revoke a passport if it deems it necessary to do so in the interest of sovereign­ty, integrity or security of Bangladesh, or in the public interest. A passport authority according to Article 2(d) of the Order means an officer or authority empowered under rules made under the Bangladesh Passport Order, 1973 to issue passports or travel documents. Secretary, Ministry of Home Affairs is a passport authori­ty within the meaning of Art. 2 (d) of the Bangladesh Passport Order, 1973. In the instant case the passport of the appellant was seized by the respondent No. 4 on the basis of an order passed by the Secretary, Ministry of Home Affairs. Article 7(4) of the Bangladesh Passport Order mandates that the passport authority impounding a passport under clause (2) of Article 7 shall record in writing brief statement of the reasons for the order and shall furnish a copy of the same to the passport holder. From the order of the learned Judges of the High Court Division we are unable to find out any finding that the order of the Secretary of the Ministry of Home Affairs indicated any the grounds for impounding the passport as contemplated in Clause (c) of Sub-Article (2) of Article 7 of the Bangladesh Passport order, 1973. Such finding obviously was not given and could not be given inasmuch as the order of the Secretary, Ministry of Home Affairs which is the basis of impounding of the passport was neither shown to the appellant nor to the High Court Division. It is also not denied by the respondent that the passport of the appellant was also earlier impounded as stated above and the same was returned in view of the decision of the High Court Division made in another writ petition and on filing contempt petition as noticed above. In these background it is seen that the respondent hurriedly hastened again to impound the passport imposing restriction on free movement of the appellant from Bangladesh for his treatment in England and to re-enter Bangladesh after such treatment in vio­lation of his fundamental right as guaranteed under Article 36 of the Constitution. For such acts on the part of the respondent we are left to no other alternative but to observe that not only the order of impounding the passport of the appellant was tainted with mala fide motive and was not an act of fairly but also bereft of any reason to enable the appellant to avail of reme­dy as provided in Article 10 of the Passport Order, 1973 to the deprivation of his right to life in getting treatment of his heart ailment. This view of ours finds support in the case of Government of Bangladesh Vs. Zeenat Hossain 1 BLC (AD) 89. The submission of the learned Additional Attorney-General that the passport was impounded in the interest of sovereignty, integrity or security of Bangladesh or in the public interest can not be accepted in that his submission rests on point of law. The learned Additional Attorney-General filed to support the order of the Secretary, Ministry of Home Affairs indicating that any of the conditions enumerated in Article 7(2) (c) the Bangladesh Passport Order was complied with by he authority. This submission is of no aid to him to say that the order of impounding was lawfully made. In the case of State Vs. M. M. Rahmatullah, this Division expressed its opin­ion on Article 7(2) of the Bangladesh Passport Order, 1973 that apprehension on the part of the authority seizing the passport that the holder of the passport will not return to Bangladesh, if he is allowed to leave the country was not a ground for impounding of a passport of a citizen who wants to leave the country for medical check up and treatment. Right to travel abroad is a funda­mental right as conceived under Article 36 of our Constitution. Supreme Court of India has taken a similar view in the case of Satwant Singh vs. D. Ramarathnam, Assistant Passport Officer, New Delhi and others, AIR (1967) (SC) 1836 wherein it has been observed that withdrawal of a passport given to an individual violates Articles 21 and 14 of Indian Constitution.
 
13. Although in the Passport Order there is no positive words requiring that the citizen whose passport is impounded shall be given an opportunity of being heard. Yet, principle of audi alterem partem mandates that no one shall be condemned unheard. The power conferred under Article 7(2) of the Passport Order to impound a passport is violative of Fundamental Right guaranteed under Article 36 of the Constitution and rules of natural justice is appli­cable in such a case inasmuch as it seriously interferes with the constitutional right of the holder of a passport to go abroad in restricting him to leave and re-enter Bangladesh.
 
14. Mr. Huq on principle of natural justice cited the decision in the case of Province of Sind v. Public at Large PLD 1988(SC) 138 wherein a Shariat Appellate Bench on reference to Article 203-D of the Constitution of Pakistan, 1973 observed that any provision of law where under some one can be harmed or condemned without affording and opportunity of defense against said act is against Qur'anic commands as supplemented and interpreted by the Sunnah of the Holy Prophet. Article 13 of the Universal Declaration of Human Rights reads:
 
"1. Everyone has the right to free­dom of movement and residence within the borders of each State.
2. Everyone has the right to leave any country, including his own, and to return to his country."
 
15. With regard to submission resting on Article 13 of the Universal Declaration of Human Right we are of the opinion that such right is in the International covenant and not a part of Municipal Law. Therefore it has no binding force for Article 36 provides complete answer. There might be a case where power to impound a passport might be frustrated if a hearing could be given to the holder of a pass­port before impounding the passport and such plea might be pleaded for excluding the princi­ple of audi alterm partem. The order of impounding of the passport of the appellant in this case obviously has been passed on the basis of the order of the Secretary, Ministry of Home Affairs and nothing could be shown to us to indicate that there was any chance to frustrate impounding of the passport by the appellant. The appellant having not been supplied with the copy of the order recording reasons there­fore restricting the appellant from leaving the country certainly is violative of Article 7(4) of the Bangladesh Passport Order and as such the appellant had no opportunity to take a decision to avail of the alternative remedy by way of appeal as provided in Article 10 of the Passport Order, 1973. For such violation the order of impounding a passport can not be held to be lawfully made. Withholding the order of the Secretary, Ministry of Home Affairs also is indicative of mala fide. Therefore, there is no reason to defeat the writ petition on the ground of doctrine of exhaustion.
 
16. Right to move the High Court Division in accordance with clause (1) of Article 102 for the enforcement of fundamental right conferred by this Part is also a fundamental right under Article 44 of the Constitution. Where a person moves the High Court Division under article 101(1) of the Constitution for enforcement of his fundamental right the writ petitioner is not required to avail of the alternative remedy before any other forum, in the present case before the appellate authority as contemplated under Article 10 of the Bangladesh Passport Order. It may be pointed out that proviso to Article 10 does not provide for any appeal against any order made by the Government and the order of the Secretary is the order of the Government and in that case no appeal shall lie as contemplated in proviso to Article 10 of the Order and the writ petition is quite competent. We, therefore, are of the opinion that the High Court Division was wrong to observe: "We agree with the learned Additional Attorney-general that the reason for impounding the peti­tioner's passport fits with the provisions of the Passport Order as quoted above". The afore-quoted observation of the High Court Division seems to us is totally unfounded in law and mis­conceived.
 
17. Mr. Rafiqul Huq seeks a direction upon the respondents to allow the appellant to leave the country in future for his treatment abroad in order to do complete justice. His submission is on the hypothesis that the respondents may not allow the appellant to leave the country. We are hopeful that the manner in which the respon­dents acted in impounding the passport shall not act similarly. They should return the passport to enable the appellant to get treatment in abroad.
 
18. For the reasons stated above, we allow the appeal and set aside the judgment and order of the High Court Division. The respondents are hereby directed to return the passport to the appellant immediately. There will be no order as to costs.
 
Ed.