Professional Documents
Culture Documents
Hussain Muhammad Ershad vs. Bangladesh and Others, 2000, 29 CLC (AD)
Hussain Muhammad Ershad vs. Bangladesh and Others, 2000, 29 CLC (AD)
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) :/(