Hussain Muhammad Ershad Vs.

Bangladesh
and others, 2000, 29 CLC (AD)
TUESDAY, 18 AUGUST 2009 16:26
Supreme Court
Appellate Division
(Civil)
Present:
Latifur Rahaman CJ
Bimalendu Bikash Roy Chodhury J
A! !ahmudur Rahman J
!ahmudul Amin Chodhury J
"a#i $%adul &o'ue J
&ussain !uhammad $rshad(((((((((((Appellant(
)s(
Ban*ladesh and others( (((((((((((((((((((Respondents(
Jud*ment
Au*ust +,- .///(
Cases Referred to0
1overnment of Ban*ladesh )s( 2eenat &ossain + BLC (AD) 345 State )s( !( !( Rahmatullah5
Satant Sin*h vs( D( Ramarathnam- Assistant Passport 6ffi7er- 8e Delhi and others- A9R (+4,:)
(SC) +3;,5 Provin7e of Sind v( Pu%li7 at Lar*e PLD +433 (SC) +;3(
Layers 9nvolved:
Barrister Rafi'ue0<l0&u'- Senior Advo7ate ("handker !ah%u% &ossain- Senior Advo7ate ith him)
instru7ted %y !vi( !d( =ahidullah- Advo7ate0on0Re7ord 0 >or the Appellant(
!ah%u%ey Alam- Additional Attorney01eneral instru7ted %y A"! Shahidul &u'- Advo7ate0on0Re7ord 0
>or Respondent 8o( +(
8ot Represented 0 Respondent 8os( .0?(
Civil Appeal 8o( +.; of .///(
(>rom the Jud*ment and order dated +?0,0./// passed %y the &i*h Court Division in =rit Petition
8o( ;+@4 of .///)(
Jud*ment
Latifur Rahman CJ( 0 9 have *one throu*h the Aud*ment of my learned %rother A(!(
!ahmudur Rahman- J( and the supplement thereto ritten %y my learned %rother B(B( Roy
Choudhury- J( 9 a*ree ith them(
Bimalendu Bikash Roy Choudhury J(0 9 have had the advanta*e of readin* the Aud*ment in draft of
my learned %other A(!( !ahmudur Rahman- J( 9 a*ree ith his 7on7lusion %ut 9 like to add a fe
ords as to the appli7a%ility of Arti7le +; of the <niversal De7laration of &uman Ri*hts to the ri*ht
of an individual to travel %eyond the %order of his state(
;( Brue it is that the <niversal &uman Ri*hts norms- hether *iven in the <niversal De7laration or
in the Covenants- are not dire7tly enfor7ea%le in national 7ourts( But if their provisions are
in7orporated into the domesti7 la- they are enfor7ea%le in national 7ourts( Bhe lo7al las- %oth
7onstitutional and statutory- are not alays in 7onsonan7e ith the norms 7ontained in the
international human ri*hts instruments( Bhe national 7ourts should not- 9 feel- strai*htaay i*nore
the international o%li*ations- hi7h a 7ountry undertakes( 9f the domesti7 las are not 7lear
enou*h or there is nothin* therein the national 7ourts should dra upon the prin7iples
in7orporated in the international instruments( But in the 7ases here the domesti7 las are 7lear
and in7onsistent ith the international o%li*ations of the state 7on7erned- the national 7ourts ill
%e o%li*ed to respe7t the national las- %ut shall dra the attention of the la makers to su7h
in7onsisten7ies(
?( 9n the instant 7ase the universal norms of freedom respe7tin* ri*hts of leavin* the 7ountry and
returnin* have %een re7o*ni#ed in Arti7le ;, of our Constitution( Bherefore there is full appli7ation
of Arti7le +; of the <niversal De7laration of &uman Ri*hts of the fa7ts of this 7ase(
A! !ahmudur Rahman J( 0 Bhis appeal %y leave is dire7ted a*ainst the Aud*ment dated +? June-
./// reAe7tin* the =rit Petition 8o( ;+@4 of ./// summarily(
,( Bhe appellant- an eC0President of the PeopleDs Repu%li7 of Ban*ladesh and an ele7ted !em%er
of the Parliament of the Jatiya Party ti7ket- filed the =rit Petition a*ainst the order dated @(,(.///
of takin* andEor impoundin* his passport at 29A (2ia 9nternational Airport) %y respondent 8o( ?-
the Assistant Superintendent of Poli7e (9mmi*ration) statin* that he had a an*io*ram and an*io0
plasti7 in "in* >aisal Spe7iali#ed &ospital and Resear7h Centre in Saudi Ara%ia %efore *oin* for
treatment in London and hen he as *oin* to London %y British Airays on @(,(./// for medi7al
7he7k up in London Clini7- London he as stopped from *oin* a%road and his passport as sei#ed
%y- respondent 8o( ? and for sei#ure of the passport he *ave a re7eipt herein it as stated that
%y order dated +(,(./// the !inistry of &ome Affairs of the PeopleDs Repu%li7 of Ban*ladesh
stopped the appellant to leave Ban*ladesh %ut neither the said order nor any order passed under
Ban*ladesh Passport 6rder- +4:; as served upon him( &e stated further that his passport also
as impounded on ;(++(44 hen he as *oin* to China at the invitation of the Chairman of the
Communist Party and he filed =rit Petition 8o( ?.@4 of +444 7hallen*in* that order of impoundin*
his passport and the &i*h Court Division issued a Rule 8isi hi7h as made a%solute on 7ontest
on +(;(./// de7larin* the order of sei#ure of the passport as ille*al- mala fide and ithout laful
authority and the &i*h Court Division ordered the respondents to return the passport to the
appellant ithin . eeks( But respondent 8o( + ithout returnin* his passport as dire7ted %y the
&i*h Court Division filed a provisional appli7ation for leave to appeal a*ainst that Aud*ment and
order and prayed for stayin* operation of the same %ut this Division on ./(?(./// refused the
prayer( But thereafter re*ular leave petition as filed %y the 1overnment and the Aud*ment of the
&i*h Court Division rea7hed its finality( 9t is further stated that as the respondent0*overnment did
not return the passport the appellant filed 7ontempt Petition 8o( .3 of ./// a*ainst the
respondents( &oever- on return of the passport on +@(@(./// %y the 1overnment the 7ontempt
petition as not pressed(
:( Bhe appellant 7hallen*ed the order dated @(,(./// of impoundin* of the passport %efore the
=rit Ben7h on the *rounds of violation of fundamental ri*ht as *uaranteed under Arti7les ;+- ;.
and ;, of the Constitution as ell on the *round of violation of <niversal De7laration of &uman
Ri*hts as re7o*ni#ed under Arti7le +; of the <niversal De7laration of &uman Ri*hts and also on
violation of prin7iple of natural Austi7e and on mala fide( Bhe &i*h Court Division %y the impu*ned
Aud*ment and order summarily dismissed the =rit Petition(
3( Bhe leave as *ranted to 7onsider as to hether the &i*h Court Division as ron* in not
holdin* that sei#ureEimpoundin* of the passport as violative of Arti7les ;+ and ;, of the
Constitution- hether the order made %y respondent is in 7onformity ith the provision of Arti7le
:(?) of Ban*ladesh Passport 6rder- +4:; and sustaina%le in la and hether the &i*h Court
Division as ron* in holdin* that the rit petition as not maintaina%le as petitioner did not
avail himself of the alternative remedy as provided in the Ban*ladesh Passport 6rder- +4:;(
4( !r( Rafi'ul &u'- learned Advo7ate for the appellant su%mitted that the &i*h Court Division
a7ted ille*ally in reAe7tin* the =rit Petition in limine in that the hole o%Ae7t of stoppin* the
appellant from leavin* Ban*ladesh as violative of his fundamental ri*ht as *uaranteed under
Arti7le ;, of the Constitution to the detriment to his health( Se7ondly- as the =rit Petition as
filed under Arti7le +/.(+) and (.) (a) (i) read ith Arti7le ?? of the Constitution for enfor7ement of
his fundamental ri*ht the 'uestion of alternative remedy does not arise( 9n this re*ard he also
su%mitted that here the passport sei#ed on the %asis of order passed %y the Se7retary- !inistry
of &ome Affairs as not shon or served %y the respondent 8o( ? upon the appellant there as
no s7ope to file appeal as 7ontemplated under Arti7le +/ of the Passport 6rder- +4:; and no
'uestion of availin* alternative remedy arises( &e further su%mitted that the &i*h Court Division
not only failed to 7onsider that the passport as impounded on an ille*al order passed %y an
authori#ed person %ut as ell 7ame to a ron* findin* that the reason for impoundin* the
passport fits in ith the provisions of the Ban*ladesh Passport 6rder ithout 7onsiderin* that the
impu*ned a7tion as taken in violation of mandatory re'uirements of Arti7le :(?) of the
Ban*ladesh Passport 6rder- +4:; hi7h mandates re7ordin* in ritin* a %rief statement of the
reasons for impoundin* the passport and as su7h the impu*ned Aud*ment and order is lia%le to %e
set0aside( &e also su%mitted that the passport of the Appellant as taken aay ithout *ivin* any
opportunity of personal hearin* in violation of the prin7iple of nature Austi7e and here in *ross
violation of the prin7iple of natural Austi7e an order passed mala fide is 7hallen*ed in rit
Aurisdi7tion the rit petitioner need not eChaust the alternative remedy in that a mala fide order
itself is ithout Aurisdi7tion( !r( &u' ur*ed that in this instant 7ase the &i*h Court Division in
eCer7ise of its rit Aurisdi7tion not only is re'uired to de7lare the order of impoundin* of passport
ille*al %ut as ell to dire7t the 1overnment to allo the appellant to leave the 7ountry for his
medi7al treatment as *uaranteed in Arti7le ;, of the Constitution( Relyin* upon Arti7le +/? of the
Constitution he asked us to *ive a dire7tion to the 1overnment to allo the appellant to *o a%road
for treatment a77ordin* to his on 7hoi7e in order to do 7omplete Austi7e as *uaranteed under
Arti7le ;, of the Constitution and also sou*ht support in this re*ard from Arti7le +; of the
<niversal De7laration of &uman Ri*hts(
+/( !r( !ah%u%ey Alam- learned Additional Attorney01eneral in repellin* the su%missions of !r(
&u'- on the other hands- su%mitted that Su%0Arti7le (.) of Arti7le : of Ban*ladesh Passport 6rder-
+4:; empoers the passport authority to impound a passport and in the instant 7ase- the
passport havin* %een impounded under the provision of said 6rder- the order is not violative of
Arti7le ;+ of the ;, of the Constitution inasmu7h as the order as passed in eCer7ise of the poer
under 7lause (7) of Su%0Arti7le (.) of Arti7le : of the Ban*ladesh Passport 6rder- +4:; in the
interest of soverei*nty- inte*rity or se7urity of the 7ountry or in pu%li7 interest the authority is not
re'uire to state any reason for impoundin* a passport( &e further su%mitted that as Arti7le +/ of
the Passport 6rder provides for an alternative remedy %y ay appeal a*ainst the order impound0
in* passport the rit petition as not 7ompetent ithout eChaustin* the alternative remedy and
the &i*h Court Division ri*htly held that the rit petition is not maintaina%le(
++( Arti7le ;, of the Constitution of the PeopleDs Repu%li7 of Ban*ladesh reads0
;,( Su%Ae7t to any reasona%le restri7tions imposed %y la in the pu%li7 interest- every 7iti#en shall
have the ri*ht to move freely throu*hout Ban*ladesh- to reside and settle in any pla7e therein and
to leave and re0enter Ban*ladesh(
+.( 8o dou%t for the ri*ht *uaranteed in Arti7le ;, a 7iti#en 7an freely move throu*hout
Ban*ladesh and to leave and re0enter Ban*ladesh( But that ri*ht is not an a%solute one and is
su%Ae7t to reasona%le restri7tion imposed %y la( Ban*ladesh Passport 6rder- +4:; 7ertainly is a
la and Arti7le :(.) (7) of the Ban*ladesh Passport 6rder- +4:; empoers a passport authority to
impound or 7ause to %e impounded or revoke a passport if it deems it ne7essary to do so in the
interest of soverei*nty- inte*rity or se7urity of Ban*ladesh- or in the pu%li7 interest( A passport
authority a77ordin* to Arti7le .(d) of the 6rder means an offi7er or authority empoered under
rules made under the Ban*ladesh Passport 6rder- +4:; to issue passports or travel do7uments(
Se7retary- !inistry of &ome Affairs is a passport authority ithin the meanin* of Art( . (d) of the
Ban*ladesh Passport 6rder- +4:;( 9n the instant 7ase the passport of the appellant as sei#ed %y
the respondent 8o( ? on the %asis of an order passed %y the Se7retary- !inistry of &ome Affairs(
Arti7le :(?) of the Ban*ladesh Passport 6rder mandates that the passport authority impoundin* a
passport under 7lause (.) of Arti7le : shall re7ord in ritin* %rief statement of the reasons for the
order and shall furnish a 7opy of the same to the passport holder( >rom the order of the learned
Jud*es of the &i*h Court Division e are una%le to find out any findin* that the order of the
Se7retary of the !inistry of &ome Affairs indi7ated any the *rounds for impoundin* the passport
as 7ontemplated in Clause (7) of Su%0Arti7le (.) of Arti7le : of the Ban*ladesh Passport order-
+4:;( Su7h findin* o%viously as not *iven and 7ould not %e *iven inasmu7h as the order of the
Se7retary- !inistry of &ome Affairs hi7h is the %asis of impoundin* of the passport as neither
shon to the appellant nor to the &i*h Court Division( 9t is also not denied %y the respondent that
the passport of the appellant as also earlier impounded as stated a%ove and the same as
returned in vie of the de7ision of the &i*h Court Division made in another rit petition and on
filin* 7ontempt petition as noti7ed a%ove( 9n these %a7k*round it is seen that the respondent
hurriedly hastened a*ain to impound the passport imposin* restri7tion on free movement of the
appellant from Ban*ladesh for his treatment in $n*land and to re0enter Ban*ladesh after su7h
treatment in violation of his fundamental ri*ht as *uaranteed under Arti7le ;, of the Constitution(
>or su7h a7ts on the part of the respondent e are left to no other alternative %ut to o%serve that
not only the order of impoundin* the passport of the appellant as tainted ith mala fide motive
and as not an a7t of fairly %ut also %ereft of any reason to ena%le the appellant to avail of reme0
dy as provided in Arti7le +/ of the Passport 6rder- +4:; to the deprivation of his ri*ht to life in
*ettin* treatment of his heart ailment( Bhis vie of ours finds support in the 7ase of 1overnment
of Ban*ladesh )s( 2eenat &ossain + BLC (AD) 34( Bhe su%mission of the learned Additional
Attorney01eneral that the passport as impounded in the interest of soverei*nty- inte*rity or
se7urity of Ban*ladesh or in the pu%li7 interest 7an not %e a77epted in that his su%mission rests on
point of la( Bhe learned Additional Attorney01eneral filed to support the order of the Se7retary-
!inistry of &ome Affairs indi7atin* that any of the 7onditions enumerated in Arti7le :(.) (7) the
Ban*ladesh Passport 6rder as 7omplied ith %y he authority( Bhis su%mission is of no aid to him
to say that the order of impoundin* as lafully made( 9n the 7ase of State )s( !( !(
Rahmatullah- this Division eCpressed its opinion on Arti7le :(.) of the Ban*ladesh Passport 6rder-
+4:; that apprehension on the part of the authority sei#in* the passport that the holder of the
passport ill not return to Ban*ladesh- if he is alloed to leave the 7ountry as not a *round for
impoundin* of a passport of a 7iti#en ho ants to leave the 7ountry for medi7al 7he7k up and
treatment( Ri*ht to travel a%road is a fundamental ri*ht as 7on7eived under Arti7le ;, of our
Constitution( Supreme Court of 9ndia has taken a similar vie in the 7ase of Satant Sin*h vs( D(
Ramarathnam- Assistant Passport 6ffi7er- 8e Delhi and others- A9R (+4,:) (SC) +3;, herein it
has %een o%served that ithdraal of a passport *iven to an individual violates Arti7les .+ and +?
of 9ndian Constitution(
+;( Althou*h in the Passport 6rder there is no positive ords re'uirin* that the 7iti#en hose
passport is impounded shall %e *iven an opportunity of %ein* heard( Fet- prin7iple of
audi alterem partemmandates that no one shall %e 7ondemned unheard( Bhe poer 7onferred
under Arti7le :(.) of the Passport 6rder to impound a passport is violative of >undamental Ri*ht
*uaranteed under Arti7le ;, of the Constitution and rules of natural Austi7e is appli7a%le in su7h a
7ase inasmu7h as it seriously interferes ith the 7onstitutional ri*ht of the holder of a passport to
*o a%road in restri7tin* him to leave and re0enter Ban*ladesh(
+?( !r( &u' on prin7iple of natural Austi7e 7ited the de7ision in the 7ase of Provin7e of Sind v( Pu%li7
at Lar*e PLD +433(SC) +;3 herein a Shariat Appellate Ben7h on referen7e to Arti7le ./;0D of the
Constitution of Pakistan- +4:; o%served that any provision of la here under some one 7an %e
harmed or 7ondemned ithout affordin* and opportunity of defense a*ainst said a7t is a*ainst
GurDani7 7ommands as supplemented and interpreted %y the Sunnah of the &oly Prophet( Arti7le
+; of the <niversal De7laration of &uman Ri*hts reads:
H+( $veryone has the ri*ht to freedom of movement and residen7e ithin the %orders of ea7h
State(
.( $veryone has the ri*ht to leave any 7ountry- in7ludin* his on- and to return to his 7ountry(H
+@( =ith re*ard to su%mission restin* on Arti7le +; of the <niversal De7laration of &uman Ri*ht
e are of the opinion that su7h ri*ht is in the 9nternational 7ovenant and not a part of !uni7ipal
La( Bherefore it has no %indin* for7e for Arti7le ;, provides 7omplete anser( Bhere mi*ht %e a
7ase here poer to impound a passport mi*ht %e frustrated if a hearin* 7ould %e *iven to the
holder of a passport %efore impoundin* the passport and su7h plea mi*ht %e pleaded for eC7ludin*
the prin7iple ofaudi alterm partem( Bhe order of impoundin* of the passport of the appellant in this
7ase o%viously has %een passed on the %asis of the order of the Se7retary- !inistry of &ome
Affairs and nothin* 7ould %e shon to us to indi7ate that there as any 7han7e to frustrate
impoundin* of the passport %y the appellant( Bhe appellant havin* not %een supplied ith the
7opy of the order re7ordin* reasons therefore restri7tin* the appellant from leavin* the 7ountry
7ertainly is violative of Arti7le :(?) of the Ban*ladesh Passport 6rder and as su7h the appellant
had no opportunity to take a de7ision to avail of the alternative remedy %y ay of appeal as
provided in Arti7le +/ of the Passport 6rder- +4:;( >or su7h violation the order of impoundin* a
passport 7an not %e held to %e lafully made( =ithholdin* the order of the Se7retary- !inistry of
&ome Affairs also is indi7ative of mala fide( Bherefore- there is no reason to defeat the rit
petition on the *round of do7trine of eChaustion(
+,( Ri*ht to move the &i*h Court Division in a77ordan7e ith 7lause (+) of Arti7le +/. for the
enfor7ement of fundamental ri*ht 7onferred %y this Part is also a fundamental ri*ht under Arti7le
?? of the Constitution( =here a person moves the &i*h Court Division under arti7le +/+(+) of the
Constitution for enfor7ement of his fundamental ri*ht the rit petitioner is not re'uired to avail of
the alternative remedy %efore any other forum- in the present 7ase %efore the appellate authority
as 7ontemplated under Arti7le +/ of the Ban*ladesh Passport 6rder( 9t may %e pointed out that
proviso to Arti7le +/ does not provide for any appeal a*ainst any order made %y the 1overnment
and the order of the Se7retary is the order of the 1overnment and in that 7ase no appeal shall lie
as 7ontemplated in proviso to Arti7le +/ of the 6rder and the rit petition is 'uite 7ompetent( =e-
therefore- are of the opinion that the &i*h Court Division as ron* to o%serve: H=e a*ree ith
the learned Additional Attorney0*eneral that the reason for impoundin* the petitionerDs passport
fits ith the provisions of the Passport 6rder as 'uoted a%oveH( Bhe afore0'uoted o%servation of
the &i*h Court Division seems to us is totally unfounded in la and mis7on7eived(
+:( !r( Rafi'ul &u' seeks a dire7tion upon the respondents to allo the appellant to leave the
7ountry in future for his treatment a%road in order to do 7omplete Austi7e( &is su%mission is on the
hypothesis that the respondents may not allo the appellant to leave the 7ountry( =e are hopeful
that the manner in hi7h the respondents a7ted in impoundin* the passport shall not a7t similarly(
Bhey should return the passport to ena%le the appellant to *et treatment in a%road(
+3( >or the reasons stated a%ove- e allo the appeal and set aside the Aud*ment and order of
the &i*h Court Division( Bhe respondents are here%y dire7ted to return the passport to the
appellant immediately( Bhere ill %e no order as to 7osts(
$d(
Bhis Case is also Reported in: 99 ADC (.//@) ;:+- : BLC (AD) ,:- .//+ BLD (AD) :/(