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Immigration Officer enjoys no discretion to detain passenger

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09th-Dec-2017       
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High Court Division :
(Special Original Jurisdiction)
Tariq ut Hakim J
Md Faruque (M Faruque) J
Rumeen Farhana............
...................... Petitioner
vs
Bangladesh, represented by the Secretary, Ministry of Home Affairs, Bangladesh
Dhaka and others     . ................ Respondents
Judgment
June 4th, 2017
Constitution of Bangladesh, 1972
Article 102(2)
In the absence of custodial order or warrant of arrest by a Court of law a person cannot be restrained from going abroad . ..... (16)
Constitution of Bangladesh, 1972
Articles 36 and 102(2)
Immigration Officials have no discretion to detain any passenger with valid travel documents unless he or she has committed a criminal offence or - there are reasonable grounds to believe that he or she is likely to commit one. The petitioner is not accused of any crime. She does not seek to escape the law or violate it. She simply wants to leave and re-enter Bangladesh as she desires. This is her fundamental right. . .... (18)
Constitution of Bangladesh, 1972 Article 102(2)
The right to exit is a personal right included within the definition of liberty and freedom and if that freedom is to be regulated or curtailed it must be within the stipulation of law..... (17)
Government of Bangladesh vs Allama Delawar Hossain Sayedee, 16 BLC (AD) I; Allama Delawar Hossain Sayedee vs Bangladesh, 18 BLT 188; Alhaj Mohammad Mossadak Ali vs Bangladesh, 24 BLT 154; Tajul Islam vs Bangladesh, 25 BLT 195 and Rafique ul Haque vs Bangladesh, 44 DLR 398 ref.
Rumeen Farhana Advocate in person.
ARM Hasanuzzaman AAG and Abu Saleh Md Fazle Rabbi AAG-For the Respondents.
Judgment
Tariq ul Hakim J : Rule Nisi has been issued calling upon the Respondents to show cause why the respondents should not be directed to allow the petitioner to leave and re-enter Bangladesh as and when necessary and/or pass such other or further order or orders as to this court may seem fit and proper.
2. The petitioner is a law abiding citizen of Bangladesh and hails from a respectable Muslim family. Her father was a language movement veteran and a freedom fighter. He was the recipient of "Shadhinata Padak" from the Government of Bangladesh. He was the founder organizational Secretary of Jubo League and a well- known Politician. The petitioner is a Barrister and a practicing Advocate of this Court. She is also a graduate of the University of London and a Human Rights activist.
3. The petitioner has been issued with Bangladesh Passport No. BA0615269 which is valid upto 10-3-2019. On several occasions she was restrained from going abroad from Hazrat Shah Jalal International Airport, Dhaka by the Immigration Officials. On May, 2016 the petitioner went to the said Airport with her passport and a valid air ticket to go to Turkey to attend the 4th Ordinary General Meeting of the International Jurist Union but the concerned Airline was asked by the Immigration Officials at the Airport not to issue her any boarding pass and, as such, the petitioner could not leave the country to attend the aforesaid meeting. On another occasion, she was invited by the House of Lords and as UK Based Human Rights Organization "Citizens Movement" to attend a conference from 10-7-2016 to 21-7-2016 and when the petitioner went to the Hazrat Shah Jalal International Airport, Dhaka to board the plane, she was kept waiting for 3 hours before being allowed to depart even though there was no embargo on her leaving the country.
4. Again on 25th August, 2016 the petitioner went to the same Airport to board a plane with a valid ticket to attend a conference at Oman but even after her luggage was checked in and the usual formalities completed she was not allowed to board the plane by the Immigration Officials without being shown any reason whatsoever .
5. Being aggrieved, the petitioner has come to this Court and obtained the present Rule.
6. The petitioner Mrs. Rumeen Farhana appearing in person submits that she has reasonable apprehension that she will continue to be harassed by the respondents when she tries to go abroad even though there is no order by any Court of Law against her going abroad or re-entering the country. The learned Advocate further submits that as a citizen of Bangladesh she has a fundamental right to leave and re-enter Bangladesh without any restriction from the respondents and in this respect she has drawn our attention to Article 36 of the Constitution of Bangladesh and a number of decisions of this Court including inter-alia Government of Bangladesh vs Allama Delawar Hossain Sayedee 16 BLC (AD) 1, Allama Delawar Hossain Sayedee vs Bangladesh, 18 BLT 2010, 188, Alhaj Mohammad Mossadak Ali vs Bangladesh, 24 BLT 154, Tajul1slam vs Bangladesh, 25 BLT 195 and prays for a direction to be issued upon the Respondents to allow her to leave and re-enter Bangladesh as and when necessary.
7. No Affidavit-in-Opposition has been filed by the respondents controverting the matters stated in the Writ Petition.
8. Mr ARM Hasanuzzaman, the learned Assistant Attorney-General admits that there is no order from any Court of Law against the petitioner restricting her from leaving the country and re-enter it .
9. Article 36 of the Constitution provides as follows:
"Subject to any reasonable restrictions imposed by law in the public interest, every citizen shall have the right to move freely throughout Bangladesh, to resides and settle in any place therein and to leave and re-enter Bangladesh"
10. The aforesaid provision of the constitution clearly states that every citizen of Bangladesh shall have the right to leave and, re-enter Bangladesh and to move freely within the territory of Bangladesh. This right is however not unfettered but subject to any restriction imposed by law.
11. Article 13 of the Universal Declaration of Human Rights, 1948 also provides that every one has the right to leave a country including his own and re-enter it.
12. In the instant case the learned Assistant Attorney-General appearing on behalf of the respondent has not been able to show any
scrap of paper to indicate that there is a restriction imposed by law or Court against the petitioner to leave and re-enter Bangladesh. The petitioner has a valid Bangladeshi Passport and it appears that though she had a valid plane tickets she was not allowed to leave the country by the Immigration Officials at Hazrat Shah Jalal International Airport on several occasions.
13. Under the Bangladesh Passport Order, 1973 a citizen's passport may be impounded by the concerned authority in certain circumstances to stop him from traveling abroad. In such case however the authority must act within the provisions stated in the said statute otherwise the impounding order will be illegal.
14. In Rafique ul Hoque vs Bangladesh. 44 DLR 398 the order impounding the petitioner's passport was done without compliance of the requirements of Bangladesh Passport Order, 1973 and consequently held illegal.
15. In Allama Delawar Hossain Sayedee vs Bangladesh, 18 BLT 188 where one of us (Tariq ul Hakim, J:) was a party this Court held:
"If the Government is allowed to restrict a person from going abroad at its discretion simply because he is going to make propaganda against Government policy or because he may be required to stand trial at a future date, then Article 36 will become nugatory. This Court being the Guardian of the Constitution cannot condone such practice."
16. An appeal against the aforesaid judgment to the Appellate Division was dismissed in Government of Bangladesh vs Allama Delawar Hossain Sayedee reported in 16 BLC (AD) 1. In Tajul Islam vs Bangladesh, 25 BLT 195 as well as Alhaj Mohammad Mossadak Ali vs Bangladesh. 24 BLT 154 this Court held that in the absence of custodial order or warrant of arrest by a Court of Law a person cannot be restrained from going abroad. The Appellate Division did not interfere when Appeals were filed against the said judgments.
17. The right to exit is a personal right included within the definition of liberty and freedom and if that freedom is to be regulated or curtailed it must be within the stipulation of law.
18. In the instant case it appears that there is no custodial order or warrant of arrest or even a restraining order against the petitioner by any Court of Law. In the circumstances the respondents' act of stopping the petitioner from leaving the country despite having a valid air ticket and passport appears to be an affront to Rule of Law and the petitioner's fundamental right to freedom of movement guaranteed by our Constitution. Such an act is clearly illegal and arbitrary. The Immigration Officials at Hazrat Shah Jalal International Airport are Government officials and they must act in accordance with law and law only. They have no discretion to detain any passenger with valid travel documents unless he or she has committed a criminal offence or there are reasonable grounds to believe that he or she is likely to commit one. By deliberately and arbitrarily violating the law on the verbal orders of their superiors if any they risk being reprimanded and penalized. The petitioner is not accused of any crime. She does not seek to escape the law or violate it. She simply wants to leave and re-enter Bangladesh as she desires. This is her fundamental right.
19. In the circumstances, we find substance in this Application under Article 102 of the Constitution.
Accordingly the Rule is made absolute. The respondents are directed to allow the petitioner to leave and re-enter Bangladesh as and when necessary without any harassment, hindrance or obstruction.

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