HUSSAIN MOHAMMAD ERSHAD VS BANGLADESH 21 BLD AD 2001

 

 Analysis of the Fact:

The Appellant, an ex President of Bangladesh and an elected member of parliament of Jatiyo

Party had an angiogram and angio plastic in King Faisal Specialized Hospital and Research Centre in Saudia Arabia before going for treatment in London and when he was going for treatment to London by British Airways on 5.06.2000 for medical checkup in London Clinic He was stopped from going abroad and his passport was seized by Respondent No. 04 and for seizure of the passport he was given a receipt where it was stated that by order 1.06.2000 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 other order passed under Bangladesh Passport Ordinance,1973 was served upon him. He stated further that earlier his passport was impounded on 3.11.99 when he was going to China and he filed writ petition no.4259 of 1999 challenging that the 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 and order the Respondents to return the Passport to the Appellant within two weeks.

Now the Appellant challenged the order dated 5.6.2000 of impounding of the passport.

Issue:

Whether the passport of the petitioner was impounded with lawful authority or not?

Argument from the Appellant:

It was argued that

Ø  High Court Division acted illegally in rejecting the writ petition because the whole object of stopping the appellant from leaving Bangladesh was violative of his fundamental rights as guaranteed under Article 36 of our Constitution. 

Ø  The writ petition was filed under Article 102(1) and 2(a)(i) read with Article 44 of the Constitution for the enforcement of his fundamental right. The question of alternative remedy did not arise. The impugned action was taken in violation of mandatory requirements of Article 7(4) of the Bangladesh Passport Order, 1973 which mandated recording in writing a brief statement of the reasons for impounding the passport. Article 13 of the Universal Declaration of Human Rights was mentioned here.

Argument from the Respondent:                                         

It was argued that

Ø  The order was not violative of Article 31 and 32 of our Constitution because the order was passed in exercise of the power under clause c of the sub article 2 of Article 7 of Bangladesh Passport Order, 1973 in the interest of the sovereignty or in the public interest the authority is not required to state any reason for impounding a passport. 

Ø  Article 10 of the Passport Order provided for an alternative remedy by the way of appeal against the order of impounding passport.

Decision:

The appeal was allowed. The judgment and order of the High Court Division were set aside. The Respondents were hereby directed to return the passport to the appellant immediately.

Reasoning behind the decision:

The above decision was taken on the following grounds;

Ø  Right to move to the High Court Division in accordance with Article 102(1) for the enforcement of fundamental rights conferred by Part III is a fundamental right under Article 44. Article 10 of the Bangladesh Passport Order, 1973 did not provide for any appeal against any order made by the Government and the order of the secretary was the order of the Government. So, the writ petition was quite competent.

Ø  Although in the Passport Order there was no statement requiring the citizens whose passport was impounded should be given an opportunity of being heard because the principle of audi alterem partem mandates no one shall be condemned unheard.

Ø  The power conferred under Article 7(2) of the Passport Order to impound a Passport was violative of the fundamental right guaranteed under Article 36 and Rules of Natural Justice was applicable in such a case in as much as it seriously interfered with the Constitutional Right.

Ø  B.B. Roy Chowdhury opined particularly that Article 13 was a part of the international Covenant and not a part of Municipal Law. So, it had no binding force because Article 36 had provided a complete answer.

 

Importance of this case:

In this case one Article that is Article 13 of UDHR was mentioned along with Article 36 of our Constitution. In this case Justice B.B Roy Chowdhury elaborately discussed how international laws can be applied along with Municipal Laws – which is the legendary outcome of this judgment. Again another point came out from this case that A petition regarding the enforcement of fundamental rights under Article 102(1) can not be turned down on the ground of non exhaustion of efficacious remedy.