High Court Division :
(Special Original Jurisdiction)
Syed Md Dastagir Husain J
Md Ataur Rahman Khan J
Tajul Islam (Md)………..Petitioner
vs
Bangladesh, represented by the Secretary, Ministry of Home Affairs and others. Respondents
Judgment
April 3rd 2017
Constitution of Bangladesh, 1972 Article 36
In absence of any custodial order passed by a competent Court of law, no request can be lawfully made to the immigration authorities to prevent a citizen from leaving the country, if any such request is made or entertained by the· immigration authorities, the same would have the effect of undermining the Rule of law and violating citizen’s constitutionally guaranteed fundamental rights. . ….. (5)
Md Tajul Islam Advocate in person.
Amit Talukder, DAG-For the Respondents.
Judgment
Syed Md Dastagir Husain J : Rule was issued calling upon the respondents to show cause as to why the respondents should not be directed to allow the petitioner to leave and reenter Bangladesh as when necessary. Pending hearing of the Rule the respondents were directed to allow the petitioner to go abroad for medical treatment at Bumrungrad International Hospital, Bangkok, Thailand without any hindrance or disturbance provided there is no restriction from any Court of law against the petitioner to leave Bangladesh. Meanwhile the petitioner has also by filing application for a supplementary Rule wherein Rule was issued calling upon the respondents to show cause as to why the respondents shall not be directed to remove all restrictions/obstructions as contained in the data base maintained by the respondents, the petitioner from freely leaving re-entering Bangladesh.
2. The short fact relevant for disposal of this, case, is that the petitioner is a peace-loving citizen of Bangladesh and a lawyer by profession, practicing Advocate of the Supreme Court of Bangladesh since 1999. The petitioner is also founder, Secretary General of National Forum for Protection of Human Rights (NFPHR), a non-registered Human Rights Organization working for protection of Human Rights of the People in Bangladesh. He is also a member of the International Jurist Union (IJU) a worldwide organization of the lawyers and jurists of Bangladesh and he worked as a leading defense counsel in the International Crimes Tribunal, Bangladesh. The petitioner are being prevented by the respondents from leaving Bangladesh without any justification or explanation. No reasons have been offered by the respondents or any Immigration Official either at the time of refusal or any time thereafter. The petitioner has in all material times been in possession of all relevant and valid travel documents (including a valid Bangladesh Passport, a valid visa and a ticket), the respondents have unlawfully prevented him from leaving the country. In preventing the petitioner from leaving Bangladesh the respondents acted in violation of the Bangladesh Passport Order, 1973. Moreover, the petitioner have no criminal proceeding pending before any other Court against him where he is wanted nor are there any allegations of commission of criminal offences. Thereby it is violative of the fundamental rights guaranteed under Articles 27, 31 and 36 of the Constitution.’ The petitioner regularly travels abroad for the purpose of discharge of professional responsibilities, tourism as well as for medical treatment. On 18-5-2016, the petitioner was denied permission to leave Bangladesh for the very first time by the respondents though he was in possession of all the travels documents. The petitioner while arrived at the Hazrat Shahjalal International Airport, Kurmitola, Dhaka at 11-00 pm on 17-5-2016 and went to Qatar Airways counter for check in, at this stage, one of the staff member of the Qatar Airways informed him that they are unable to issue a Boarding Pass in favour of the petitioner as they have been asked by immigration authorities not to issue the same in favour of the petitioner. Thereafter in June 2016, the respondents allowed the petitioner to leave Bangladesh to go to Saudi Arabia for the purpose of Umrah. The petitioner left Bangladesh on 23-6-2016 and returned to Bangladesh after completion of Umrah on 5-7-2016. The petitioner now has been advised by his doctors to go abroad for better medical consultation, diagnosis and treatment and then the petitioner made appointments with consultants at Bumrungrad International Hospital, Bangkok, Thailand on 26-8-2016. The petitioner purchased a Biman Bangladesh’ ticket to leave Bangladesh on 25-8-2016 along with a return ticket for his scheduled return on 30-8-2016. All the petitioner’s travel documents (including Bangladesh Passport) were valid, lawful and in order as per schedule of the flight to leave Dhaka for Bangkok at 12-05 pm on 25-8-2016. The petitioner arrived at Hazrat Shahjalal International Airport, Kurmitola, Dhaka in time and he completed the formalities at the Biman Bangladesh counter. While a Boarding Pass was issued by the staff of Biman Bangladesh Airlines and he proceeded to the Immigration Desk of the Hazrat Shahjalal International Airport, the petitioner handed over his Bangladesh Passport No.BH0053606 and a duly completed Immigration Card to the Immigration officer. While the Immigration Officer was scrutinizing the Bangladesh Passport and visa of the petitioner, the respondent No.5 (Officer-in-Charge Immigration Police, Special Branch, Hazrat Shahjalal International Airport, Kurmitola, Dhaka) arrived at the Immigration Desk. The respondent No.5 took the Bangladesh Passport of the petitioner and informed him that he had instructions from higher authorities to prevent him from leaving Bangladesh and accordingly, he took away the petitioner’s boarding pass from him. No explanation or reason whatsoever was given for preventing the petitioner from leaving Bangladesh. Later. the petitioner found out that the immigration authorities had affixed a departure seal in his passport although he was not allowed to cross the Immigration Desk. The respondents had allowed the petitioner to leave Bangladesh but on most occasions, they have kept the petitioner waiting for hours at the Airport.
Although the respondents have allowed the petitioner to leave Bangladesh on a number occasions, this invariably depends on the whims and caprice of the respondents. Therefore, the instant writ petition directing the respondents to allow him to go abroad. The petitioner has every apprehension that he will face restriction at the Airport when he tries to go abroad and as such the instant application as the respondents have prevented the petitioner from leaving Bangladesh. It is violation of the order and also Rules guaranteed under Article 36 of the Constitution. The petitioner finding no other alternative remedy preferred this application and obtained the present Rule.
3. Mr Muhammad Tajul Islam, the petitioner himself has appeared and submits that the action of the respondents in refusing to allow the petitioner to leave the country is arbitrary and without jurisdiction. No reasons has ever been assigned for the restriction from going abroad despite his passport has neither been impounded nor seized. Moreover the petitioner submits that he has fundamental rights to leave and re-enter the country subject to reasonable restriction as imposed by law. However the petitioner has been prevented from leaving Bangladesh in violation of the provision of the taw and also a restriction on the fundamental rights as guaranteed under Article 36 of the Constitution must be strictly construed. The petitioner being in lawful possession of a Bangladesh Passport (bearing No. BH0053606) which has been issued in accordance with the Passport Order, 1973 and the said passport being valid, the petitioner is entitled to leave and re-enter Bangladesh and moreover no criminal case is pending against him nor there is any allegation of any offence. Therefore the respondents deliberately violated the fundamental rights in restricting a persons from going abroad is an abuse of the process of law. Thus being the guardian of the Constitution this Court can condone all such restriction or preventing him to go abroad and re-entering. Therefore it requires interference by this Court. The supplementary Rule as has been issued that restriction as was created by the respondent No. 5 recorded a General dairy being ALT GD No.969 dated 19-2-2017 be withdrawn because the petitioner has the every right to leave and re-entering to Bangladesh without any hindrance or disturbance.
4. On the other hand the learned Assistant Attorney General by filing affidavit in opposition on behalf of the respondent No.1 submits that although upon the request one of authorities of Bangladesh, the immigration authority prevented the petitioner from going abroad, but subsequently he was allowed to travel abroad. Further he submits that this practice is maintained out of co-ordination among different organization and agencies of the Government. But the petitioner was not prevented to leave the country and thus the petitioner traveled abroad later on. He further submits that if the petitioner is not reported to be an accused in any pending case and if there is no requisition from any competent authority there is no reasonable ground for imposing embargo but in this particular case there was no restriction upon the petitioner from going abroad and re-entering into Bangladesh. The learned Assistant Attorney General further submits that already there are some restriction/ obstructions as contained in data base preventing the petitioner from going abroad and re-entering on which supple-mentary Rule has been issued. In this context the learned Assistant Attorney General on behalf of the respondent No.1 submitted that there is no restriction or any hindrance in respect of the. petitioner in leaving and re-entering. Therefore the Rule is to be discharged.
5. Heard the learned Advocates, as it appears the petitioner though have valid Passport, ticket, visa but he was prevented from leaving Bangladesh by the immigration authority. Thereby, it has impounded the fundamental rights guaranteed under Article 36 of the Constitution. Further in absence of any custodial order passed by a competent Court of law, no request can be lawfully made to the immigration authorities to prevent citizen from leaving the country, if any such request is made or entertained by the immigration authorities, the same would have the effect of undermining the Rule of law and violating a citizen’s constitutionally guaranteed Fundamental Rights. He has no criminal case nor any offence has been shown nor there is any record of offence committed by the petitioner, simply he. was traveling abroad. Therefore such restriction or embargo is illegal and unconstitutional if any request is made from any other authorities preventing a citizen going abroad without assigning any reason that would be violation of fundamental rights guaranteed by the constitution. For restricting a person from going abroad there must be specific allegation for which an order from acompetent Court is required but without any such restriction embargo upon the traveling the petitioner will be an abuse of the process of law. The petitioner is the citizen of this country, is entitled to leave, re-enter Bangladesh without any hindrance or disturbance and without any valid reason imposition of such restrictions is a violation of fundamental tights guaranteed under the constitution. Under such circumstances the respondents are directed to remove all restrictions/ obstructions as contained in the data base maintained by the respondents and allow the petitioner from freely leaving and reentering Bangladesh without any hindrance and obstruction.
(Special Original Jurisdiction)
Syed Md Dastagir Husain J
Md Ataur Rahman Khan J
Tajul Islam (Md)………..Petitioner
vs
Bangladesh, represented by the Secretary, Ministry of Home Affairs and others. Respondents
Judgment
April 3rd 2017
Constitution of Bangladesh, 1972 Article 36
In absence of any custodial order passed by a competent Court of law, no request can be lawfully made to the immigration authorities to prevent a citizen from leaving the country, if any such request is made or entertained by the· immigration authorities, the same would have the effect of undermining the Rule of law and violating citizen’s constitutionally guaranteed fundamental rights. . ….. (5)
Md Tajul Islam Advocate in person.
Amit Talukder, DAG-For the Respondents.
Judgment
Syed Md Dastagir Husain J : Rule was issued calling upon the respondents to show cause as to why the respondents should not be directed to allow the petitioner to leave and reenter Bangladesh as when necessary. Pending hearing of the Rule the respondents were directed to allow the petitioner to go abroad for medical treatment at Bumrungrad International Hospital, Bangkok, Thailand without any hindrance or disturbance provided there is no restriction from any Court of law against the petitioner to leave Bangladesh. Meanwhile the petitioner has also by filing application for a supplementary Rule wherein Rule was issued calling upon the respondents to show cause as to why the respondents shall not be directed to remove all restrictions/obstructions as contained in the data base maintained by the respondents, the petitioner from freely leaving re-entering Bangladesh.
2. The short fact relevant for disposal of this, case, is that the petitioner is a peace-loving citizen of Bangladesh and a lawyer by profession, practicing Advocate of the Supreme Court of Bangladesh since 1999. The petitioner is also founder, Secretary General of National Forum for Protection of Human Rights (NFPHR), a non-registered Human Rights Organization working for protection of Human Rights of the People in Bangladesh. He is also a member of the International Jurist Union (IJU) a worldwide organization of the lawyers and jurists of Bangladesh and he worked as a leading defense counsel in the International Crimes Tribunal, Bangladesh. The petitioner are being prevented by the respondents from leaving Bangladesh without any justification or explanation. No reasons have been offered by the respondents or any Immigration Official either at the time of refusal or any time thereafter. The petitioner has in all material times been in possession of all relevant and valid travel documents (including a valid Bangladesh Passport, a valid visa and a ticket), the respondents have unlawfully prevented him from leaving the country. In preventing the petitioner from leaving Bangladesh the respondents acted in violation of the Bangladesh Passport Order, 1973. Moreover, the petitioner have no criminal proceeding pending before any other Court against him where he is wanted nor are there any allegations of commission of criminal offences. Thereby it is violative of the fundamental rights guaranteed under Articles 27, 31 and 36 of the Constitution.’ The petitioner regularly travels abroad for the purpose of discharge of professional responsibilities, tourism as well as for medical treatment. On 18-5-2016, the petitioner was denied permission to leave Bangladesh for the very first time by the respondents though he was in possession of all the travels documents. The petitioner while arrived at the Hazrat Shahjalal International Airport, Kurmitola, Dhaka at 11-00 pm on 17-5-2016 and went to Qatar Airways counter for check in, at this stage, one of the staff member of the Qatar Airways informed him that they are unable to issue a Boarding Pass in favour of the petitioner as they have been asked by immigration authorities not to issue the same in favour of the petitioner. Thereafter in June 2016, the respondents allowed the petitioner to leave Bangladesh to go to Saudi Arabia for the purpose of Umrah. The petitioner left Bangladesh on 23-6-2016 and returned to Bangladesh after completion of Umrah on 5-7-2016. The petitioner now has been advised by his doctors to go abroad for better medical consultation, diagnosis and treatment and then the petitioner made appointments with consultants at Bumrungrad International Hospital, Bangkok, Thailand on 26-8-2016. The petitioner purchased a Biman Bangladesh’ ticket to leave Bangladesh on 25-8-2016 along with a return ticket for his scheduled return on 30-8-2016. All the petitioner’s travel documents (including Bangladesh Passport) were valid, lawful and in order as per schedule of the flight to leave Dhaka for Bangkok at 12-05 pm on 25-8-2016. The petitioner arrived at Hazrat Shahjalal International Airport, Kurmitola, Dhaka in time and he completed the formalities at the Biman Bangladesh counter. While a Boarding Pass was issued by the staff of Biman Bangladesh Airlines and he proceeded to the Immigration Desk of the Hazrat Shahjalal International Airport, the petitioner handed over his Bangladesh Passport No.BH0053606 and a duly completed Immigration Card to the Immigration officer. While the Immigration Officer was scrutinizing the Bangladesh Passport and visa of the petitioner, the respondent No.5 (Officer-in-Charge Immigration Police, Special Branch, Hazrat Shahjalal International Airport, Kurmitola, Dhaka) arrived at the Immigration Desk. The respondent No.5 took the Bangladesh Passport of the petitioner and informed him that he had instructions from higher authorities to prevent him from leaving Bangladesh and accordingly, he took away the petitioner’s boarding pass from him. No explanation or reason whatsoever was given for preventing the petitioner from leaving Bangladesh. Later. the petitioner found out that the immigration authorities had affixed a departure seal in his passport although he was not allowed to cross the Immigration Desk. The respondents had allowed the petitioner to leave Bangladesh but on most occasions, they have kept the petitioner waiting for hours at the Airport.
Although the respondents have allowed the petitioner to leave Bangladesh on a number occasions, this invariably depends on the whims and caprice of the respondents. Therefore, the instant writ petition directing the respondents to allow him to go abroad. The petitioner has every apprehension that he will face restriction at the Airport when he tries to go abroad and as such the instant application as the respondents have prevented the petitioner from leaving Bangladesh. It is violation of the order and also Rules guaranteed under Article 36 of the Constitution. The petitioner finding no other alternative remedy preferred this application and obtained the present Rule.
3. Mr Muhammad Tajul Islam, the petitioner himself has appeared and submits that the action of the respondents in refusing to allow the petitioner to leave the country is arbitrary and without jurisdiction. No reasons has ever been assigned for the restriction from going abroad despite his passport has neither been impounded nor seized. Moreover the petitioner submits that he has fundamental rights to leave and re-enter the country subject to reasonable restriction as imposed by law. However the petitioner has been prevented from leaving Bangladesh in violation of the provision of the taw and also a restriction on the fundamental rights as guaranteed under Article 36 of the Constitution must be strictly construed. The petitioner being in lawful possession of a Bangladesh Passport (bearing No. BH0053606) which has been issued in accordance with the Passport Order, 1973 and the said passport being valid, the petitioner is entitled to leave and re-enter Bangladesh and moreover no criminal case is pending against him nor there is any allegation of any offence. Therefore the respondents deliberately violated the fundamental rights in restricting a persons from going abroad is an abuse of the process of law. Thus being the guardian of the Constitution this Court can condone all such restriction or preventing him to go abroad and re-entering. Therefore it requires interference by this Court. The supplementary Rule as has been issued that restriction as was created by the respondent No. 5 recorded a General dairy being ALT GD No.969 dated 19-2-2017 be withdrawn because the petitioner has the every right to leave and re-entering to Bangladesh without any hindrance or disturbance.
4. On the other hand the learned Assistant Attorney General by filing affidavit in opposition on behalf of the respondent No.1 submits that although upon the request one of authorities of Bangladesh, the immigration authority prevented the petitioner from going abroad, but subsequently he was allowed to travel abroad. Further he submits that this practice is maintained out of co-ordination among different organization and agencies of the Government. But the petitioner was not prevented to leave the country and thus the petitioner traveled abroad later on. He further submits that if the petitioner is not reported to be an accused in any pending case and if there is no requisition from any competent authority there is no reasonable ground for imposing embargo but in this particular case there was no restriction upon the petitioner from going abroad and re-entering into Bangladesh. The learned Assistant Attorney General further submits that already there are some restriction/ obstructions as contained in data base preventing the petitioner from going abroad and re-entering on which supple-mentary Rule has been issued. In this context the learned Assistant Attorney General on behalf of the respondent No.1 submitted that there is no restriction or any hindrance in respect of the. petitioner in leaving and re-entering. Therefore the Rule is to be discharged.
5. Heard the learned Advocates, as it appears the petitioner though have valid Passport, ticket, visa but he was prevented from leaving Bangladesh by the immigration authority. Thereby, it has impounded the fundamental rights guaranteed under Article 36 of the Constitution. Further in absence of any custodial order passed by a competent Court of law, no request can be lawfully made to the immigration authorities to prevent citizen from leaving the country, if any such request is made or entertained by the immigration authorities, the same would have the effect of undermining the Rule of law and violating a citizen’s constitutionally guaranteed Fundamental Rights. He has no criminal case nor any offence has been shown nor there is any record of offence committed by the petitioner, simply he. was traveling abroad. Therefore such restriction or embargo is illegal and unconstitutional if any request is made from any other authorities preventing a citizen going abroad without assigning any reason that would be violation of fundamental rights guaranteed by the constitution. For restricting a person from going abroad there must be specific allegation for which an order from acompetent Court is required but without any such restriction embargo upon the traveling the petitioner will be an abuse of the process of law. The petitioner is the citizen of this country, is entitled to leave, re-enter Bangladesh without any hindrance or disturbance and without any valid reason imposition of such restrictions is a violation of fundamental tights guaranteed under the constitution. Under such circumstances the respondents are directed to remove all restrictions/ obstructions as contained in the data base maintained by the respondents and allow the petitioner from freely leaving and reentering Bangladesh without any hindrance and obstruction.
