Case No: Writ Petition No. 5600 of 2016
Judge: Quamrul Islam Siddique. J.
Court: High Court Division,
Advocate: Mr. Zainul Abedin, Mr. Md. Moklesur Rahman,
Citation: 2017 (1) LNJ 23
Case Year: 2016
Appellant: Md. Ruhul Kabir Rizvi
Respondent: Government of Bangladesh and others
Subject: Civil Law
Delivery Date: 2018-02-04
HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
Quamrul Islam Siddique, J
Sheikh Hassan Arif, J
Md. Ruhul Kabir Rizvi
. . . Petitioner.
Government of Bangladesh, represented by the Secretary Ministry of Home Affairs, Bangladesh Secretariat, Ramna, Dhaka and another
. . . Respondents.
Bangladesh Passport Order, 1973
Mere pendency of criminal cases does not disqualify the petitioner to have a passport.
. . . (9)
Bangladesh Passport Order, 1973
There is no dispute that the authority reserves the right to issue passport or travel document as the case may be or refuse to issue passport or travel document to any citizen of the country. But the authority must exercise this power to issue passport or to refuse to issue passport legally and judiciously. . . . (10)
Constitution of Bangladesh, 1972
From the provision of Article 36 of the Constitution, it appears that every citizen shall have the constitutional right to move freely throughout Bangladesh and to leave and re-enter Bangladesh. .... (12)
Constitution of Bangladesh, 1972
Articles 31 and 36
The petitioner being a lawful citizen of Bangladesh is entitled to a Machine Readable Passport and withholding the same is clear violation of Articles 31 and 36 of the Constitution. The inordinate delay of the respondents to deliver the passport of the petitioner is declared illegal, without lawful authority and is of no legal effect. The respondents are directed to deliver the new Machine Readable Passport (MRP) to the petitioner within 15 (fifteen) days from the date of receipt of a copy of this judgment.
... (19, 22 and 23)
Syed Mokbul Hossain, Vs. Bangladesh, 44 DLR, 39 and Schmidt Vs. Secretary of State, (1969) 2 ChD 149 corresponding to (1969) All ER 904 ref.
Mr. Zainul Abedin, with
Mr. Md. Jahirul Islam Sumon, Advocates
. . . For the petitioner.
Mr. Md. Mokleshur Rahman, D.A.G with
M/s. Farida Yeasmin, A.A.G with
M/s. Salma Rahman, A.A.G
. . . For the respondents.
Quamrul Islam Siddique, J:
In this application under Article 102 of the Constitution of the People’s Republic of Bangladesh, a Rule Nisi was issued calling upon the respondents to show cause as to why the inordinate delay of the respondents to deliver the Passport of the petitioner bearing “Delivery Slip” No. 260100003503845 dated 10.12.2015 should not be declared illegal, without lawful authority and is of no legal effect and as to why a direction should not be given upon the respondents to deliver the petitioner’s passport bearing “Delivery Slip” No. 260100003503845 dated 10.12.2015 and / or such other or further order or orders passed as to this Court may seem fit and proper.
2. The facts leading to the issuance of the Rule, in brief, are: The petitioner is a citizen of Bangladesh and he is an Advocate of the Supreme Court of Bangladesh. His Advocate membership ID No. is 4256. The petitioner being a citizen of Bangladesh obtained a passport being No. C0184797 which was issued on 17th July 2008. The validity of the passport of the petitioner expired on 17 July, 2013. As the validity of passport of the petitioner expired on 17 July 2013, the petitioner surrendered his passport to respondent No. 2 on 10.12.2015 and applied for a new Machine Readable Passport (shortly, MRP)on the same date. On 10.12.2015, the petitioner filed an application addressed to respondent No. 2 to get a new Machine Readable Passport (MRP) and submitted all necessary documents with the application. Respondent No. 2 gave a ‘delivery sleep’ being No. 260100003503845 dated 10.12.2017 and the tentative date of delivery of passport was fixed on 31.12.2015. On several occasions, the petitioner requested respondent No. 2 to deliver his passport, but respondent No. 2 failed to deliver the passport without any cogent reason. The petitioner served a notice demanding justice upon the respondents but no action was taken. The petitioner being a citizen of Bangladesh is entitled to get a passport. Denial of respondent No. 2 to give passport to the petitioner is violative of the fundamental rights of the petitioner as guaranteed under Articles 31, 36 and 37 of the Constitution of People’s Republic of Bangladesh. Being aggrieved by and dissatisfied with the failure of respondent No. 2 to deliver the new Machine Readable Passport to the petitioner, the petitioner has moved this Court and obtained the instant Rule Nisi.
3. Respondent No. 2 entered appearance by filing an affidavit-in-opposition controverting all the material statements made in the writ petition.
4. The case of respondent No. 2, in short, is that, the status of the petitioner is different from that of the status of the normal citizens of the country, because, as many as 29 criminal cases are pending against the petitioner before the Court of law. Section 6(1)(e) of the Bangladesh Passport Order, 1973(hereinafter referred to as the Order, 1973), empowers wide discretion upon the authority to grant or to refuse passport to any person. Section 5(2) of the Order, 1973 also empowers the authority to refer the matter for enquiry as it considers necessary. According to Rule 5(2) of the aforesaid Order, 1973, respondent No. 2 referred the matter to the Special Branch, Bangladesh Police for enquiry. The Special Branch after enquiry submitted report on 06.01.2016. Since a report has been forwarded by the Special Branch of Police to the effect that as many as 29 criminal cases are pending against the petitioner before the Court of law, the petitioner is not entitled to a passport. Respondent No. 2 rightly refused to deliver the passport to the petitioner. The present writ petition is malafide and misconceived and as such the Rule is liable to be discharged with costs.
5. Mr. Zainul Abedin, the learned Advocate appearing on behalf of the petitioner submits that the petitioner being a citizen of Bangladesh is legally entitled to have a passport. He further submits that in fact the petitioner was given a passport being No. C0184797 and that he used this passport and travelled outside Bangladesh on many occasions. He then submits that the petitioner surrendered his earlier passport to respondent No. 2 and prayed for a new Machine Readable Passport (MRP) and that respondent No. 2 duly gave him a “delivery slip”. He next submits that as per averment of the “delivery slip” given by respondent No. 2, the petitioner is expected to get the MRP passport on 31.12.2015. He again submits that despite repeated requests, respondent No. 2 did not deliver the passport to the petitioner. He lastly submits that there is no reason that the passport of the petitioner should be withheld by respondent No. 2 for no fault of the petitioner and as such the Rule is liable to be made absolute.
6. Mr. Md. Mokleshur Rahman, the learned Deputy Attorney General appearing on behalf of respondent No. 2, on the other hand, submits that there are as many as 29 criminal cases pending against the petitioner. He further submits that under section 6(1)(2) of the Bangladesh Passport Order, 1973, and under section 5(2) of the Bangladesh Passport Order, 1973, the authority enjoys the discretion to grant or to refuse passport to any person. He lastly submits that as per the report of the Special Branch, the petitioner is not entitled to a passport and as such the Rule is liable to be discharged with costs.
7. We have perused the writ petition, its annexures, affidavit in opposition filed by the respondent No. 2, its annexures, supplementary affidavit filed by the petitioner, its annexures and other relevant papers.
8. It appears from the record that the petitioner had a passport being No. C0184797. According to the decision of the Government, the old passports have been obsolete and all the citizens of the country have been requested to collect Machine Readable Passport (MRP). The photo copy of the old passport of the petitioner has been annexed as Annexure-A. Annexure-B1 to the writ petition reveals that respondent No. 2 has given a “delivery slip” to the petitioner stating that the tentative collection date of the passport is on 31.12.2015. But respondent No. 2 has not delivered the passport to the petitioner as yet. The learned Deputy Attorney General submits that according to section 6(1)(2) of the Order, 1973 and section 5(2) of the Order, 1973, the authority is empowered to grant or to refuse passport to any person. For proper appreciation, Rule 6(1)(2) of the Order, 1973 is quoted below which runs as under:
“Sec-6. Subject to the provisions of this Order, the passport authority. (1) may refuse to issue a passport or travel document on any one or more of the following grounds-
(a) That the applicant is not a citizen of Bangladesh;
(b) That the applicant was convicted under the Bangladesh Collaborators (Special Tribunal) Order, 1972 (P.O. No. 8 of 1972);
(c) That the applicant has, at any time during the period of five years immediately preceding the date of his application, been convicted by a court in Bangladesh for any offence involving moral turpi tude, and sentenced in respect thereof to imprisonment for not less than two years;
(d) That the applicant was convicted or is reasonably suspected of smuggling of currency, drugs, arms trafficking in woman and slaves, foreign currency, Passports or of indulging in illegal dealings involving foreign exchange, trade or commerce;
(e) That the applicant is evading or likely to evade appearance in any pending proceedings against him in a criminal court in Bangladesh or that an order prohibiting the departure from Bangladesh or the applicant has been made by any such court;
(f) That t he applicant was previously deported from abroad on account of his undesirable activity;
(g) That the applicant has been repatriated and has not reimbursed the expenditure incurred in connection with such riparian;
(h) That the applicant is likely to become destitute and his repatriation would be a charge on public funds;
(i) That the application has been made for a minor, suspected of being taken out of Bangladesh against an order of the court or against the wishes of the legal guardian;
(j) That the applicant is suffering from such mental or physical deficiency which renders him incapable of taking care of himself unless accompanied by legal guardian or an authorized person; and
(2) shall refuse to issue a passport or travel document on any one or more of the following grounds-
(a) that the applicant, in the opinion of the Government, is likely to engage outside Bangladesh in activities prejudicial to the sovereignty, integrity or security of Bangladesh;
(b) that the applicant, in the opinion of the Government, is reasonable suspected of evading or attempting to evade the duty to render any service which, under any law, he is required to render in the public interest;
(c) that the issue of a passport or travel document to the applicant, in the opinion of the Government, will not be in the public interest.”
9. We find that none of the above conditions exists in the case of the petitioner. Mere pendency of criminal cases does not disqualify the petitioner to have a passport.
Section 5(2) of the Order 1973 is as follows:
“On receipt of an application, the passport authority, after making such inquiry, if any, as it may consider necessary, shall, subject to the provisions of this order, by order in writing issue passport or travel document, as the case may be, or refuse to issue passport or travel document or restrict the number of countries to be endorsed upon such passport or travel document.”
10. There is no dispute that the authority reserves the right to issue passport or travel document as the case may be or refuse to issue passport or travel document to any citizen of the country. But the authority must exercise this power to issue passport or to refuse to issue passport legally and judiciously.
11. According to Article 36 of the constitution of Bangladesh, every person has a right to move freely throughout Bangladesh, to reside and settle in any place in Bangladesh and to leave and re-enter Bangladesh. For proper appreciation, Article 36 of the constitution is quoted below which runs as under:
Subject to any reasonable restriction 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. From the above constitutional provision, we find that every citizen shall have the constitutional right to move freely throughout Bangladesh and to leave and re-enter Bangladesh.
13. In fact, the history of passport is very interesting;
“One of the earliest known references to paperwork that served in a role similar to that of a passport is found in the Hebrew Bible. Nehemiah 2:7-9, dating from approximately 450 BC, states that Nehemiah, an official serving King Artaxerxes I of Persia, asked permission to travel to Judea; the king granted leave and gave him a letter "to the governors beyond the river" requesting safe passage for him as he traveled through their lands.
In the medieval Islamic Caliphate, a form of passport was the bara'a, a receipt for taxes paid. Only people who paid their zakah (for Muslims) or jizya (for dhimmis) taxes were permitted to travel to different regions of the Caliphate; thus, the bara'a receipt was a "traveler's basic passport."
Etymological sources show that the term "passport" is from a medieval document that was required in order to pass through the gate (or "porte") of a city wall or to pass through a territory. In medieval Europe, such documents were issued to travelers by local authorities, and generally contained a list of towns and cities the document holder was permitted to enter or pass through. On the whole, documents were not required for travel to sea ports, which were considered open trading points, but documents were required to travel inland from sea ports.
King Henry V of England is credited with having invented what some consider the first true passport, as a means of helping his subjects prove who they were in foreign lands. The earliest reference to these documents is found in a 1414 Act of Parliament. In 1540, granting travel documents in England became a role of the Privy Council of England, and it was around this time that the term "passport" was used. In 1794, issuing British passports became the job of the Office of the Secretary of State. The 1548 Imperial Diet of Augsburg required the public to hold imperial documents for travel, at the risk of permanent exile.
A rapid expansion of rail travel and wealth in Europe beginning in the mid-nineteenth century led to a unique dilution of the passport system for approximately thirty years prior to World War I. The speed of trains, as well as the number of passengers that crossed multiple borders, made enforcement of passport laws difficult. The general reaction was the relaxation of passport requirements. In the later part of the nineteenth century and up to World War I, passports were not required, on the whole, for travel within Europe, and crossing a border was a relatively straightforward procedure. Consequently, comparatively few people held passports.
During World War I, European governments introduced border passport requirements for security reasons, and to control the emigration of people with useful skills. These controls remained in place after the war, becoming a standard, though controversial, procedure. British tourists of the 1920s complained, especially about attached photographs and physical descriptions, which they considered led to a "nasty dehumanization".
In 1920, the League of Nations held a conference on passports, the Paris Conference on Passports HYPERLINK "https://en.wikipedia.org/wiki/Paris_Conference_on_Passports_%26_Customs_Formalities_and_Through_Tickets"&HYPERLINK "https://en.wikipedia.org/wiki/Paris_Conference_on_Passports_%26_Customs_Formalities_and_Through_Tickets" Customs Formalities and Through Tickets. Passport guidelines and a general booklet design resulted from the conference, which was followed up by conferences in 1926 and 1927.
While the United Nations held a travel conference in 1963, no passport guidelines resulted from it. Passport standardization came about in 1980, under the auspices of the International Civil Aviation Organization (ICAO). ICAO standards include those for machine-readable passports. Such passports have an area where some of the information otherwise written in textual form is written as strings of alphanumeric characters, printed in a manner suitable for optical character recognition. This enables border controllers and other law enforcement agents to process these passports more quickly, without having to input the information manually into a computer. ICAO publishes Doc 9303 Machine Readable Travel Documents, the technical standard for machine-readable passports. A more recent standard is for biometric passports. These contain biometrics to authenticate the identity of travelers. The passport's critical information is stored on a tiny RFID computer chip, much like information stored on smartcards. Like some smartcards, the passport booklet design calls for an embedded contactless chip that is able to hold digital signature data to ensure the integrity of the passport and the biometric data.”
14. Reverting back to the case in hand, the petitioner had a passport and during this time he has not earned any disqualification under Rule 6(1)(2) of the Order, 1973 or Rule 5(2) of the Order, 1973 to get a new Machine Readable Passport.
15. The learned advocate for the petitioner referred to the case of Syed Mokbul Hossain, Vs. Bangladesh reported in 44 DLR, 39. In this case referred to above, a Division Bench of this Court has held as under:
“The passport is more than a property to a citizen because without passport one can’t move an inch whenever he is outside the country. In the absence of the passport a person in an alien territory is a crippled person.”
16. Mr. Zainul Abedin, learned Advocate for the petitioner has referred to the case reported in AIR 1967 (SC) 1836 where in two passports of a holder were cancelled on the ground that he had failed to produce the same when asked for. The Supreme Court of India under Article 32 of the Constitution of India issued a writ of mandamus directing to restore the passport to its holder as the same were not done in accordance with law (Ref: 44 DLR (1992), 39 para 24).
17. Right and liberty are so fundamental in a civilized society that without such right no civilized human society can be dreamt of. Lord Denning on the theme of liberty observed in Schmidt Vs. Secretary of State, reported in (1969) 2 ChD 149 corresponding to (1969) All ER 904 as under:
“Where a public officer has power to deprive a person of his liberty or his property, the general principle is that it is not to be done without hearing.”
18. The petitioner is a lawyer of Bangladesh Supreme Court Bar Association and his ID No. is 4256.
19. The petitioner being a lawful citizen of Bangladesh is entitled to a Machine Readable Passport and withholding the same is clear violation of Articles 31 and 36 of the Constitution.
20. Considering all these facts and circumstances of the case and the discussions made hereinbefore, we find substance in this Rule.
21. Accordingly, the Rule is made absolute.
22. The inordinate delay of the respondents to deliver the passport of the petitioner bearing ‘delivery slip’ No. 260100003503845 dated 10.12.2015 is declared illegal, without lawful authority and is of no legal effect.
23. The respondents are directed to deliver the new Machine Readable Passport (MRP) to the petitioner within 15 (fifteen) days from the date of receipt of a copy of this judgment.
There is, however, no order as to costs.