SC observes in full text verdict

Court approval in 3 days must to restrict travel abroad

03 December 2021


Staff Reporter :
The Supreme Court in the full text of a verdict has given explanations of Article 36 of the Constitution regarding citizens' freedom of movement, observing that authorities concerned will have to take approval from the appropriate court on three working days of imposing restriction on anybody's leaving the country.     
"Restriction may be imposed on travel in order to prevent exit from the country by persons who leave quickly to avoid due process of law. However, this would be subject to confirmation by the appropriate court within a period of three working days," the Appellate Division of the SC said in the 18 page-verdict which was released on Wednesday.  
Earlier on September 27, the apex court delivered a short verdict modifying, with some observations and directions, the High Court ruling that Anti-Corruption
 Commission (ACC) has to take court permission to impose embargo on corruption suspects or accused from leaving the country.
A four-member Bench of the Appellate Division headed by Chief Justice Syed Mahmud Hossain delivered the verdict on the appeals moved by ACC lawyer Khurshid Alam Khan, challenging the HC judgements and orders on this issue.
In the full text verdict, the apex court said, "The fundamental right guaranteed under Article 36 of the constitution of Bangladesh is not-absolute right. The right to leave one's country has therefore never been considered an absolute right. The right may be restricted in certain circumstances."  
"Article 36 of the Constitution permits imposition of restrictions. However, such restrictions must be by way of the law enacted and must be reasonably done in the public interest."
"Without backing of law imposition of restriction on the freedom of movement by an executive order will be unconstitutional," it said.
The apex court judges said in the full text of verdict, "The legislative view of what constitutes reasonable restriction shall not be conclusive and final that it shall be subject to supervision of the court."
"A restriction in order to be referred to as reasonable shall not be arbitrary and shall not be beyond what is required in the interest of public. The restriction imposed shall have a direct or proximate nexus with the object sought to be achieved by the law."     
"Freedom, if absolute, always be detrimental to smooth functioning of the society.  Reasonableness demands proper balancing," the SC judges said in the full text of verdict.
They also observed, "The right to leave the country and to possess a passport may be restricted, most notably if the person's presence is required due to their having been charged with a criminal offence. However, merely because a person involved in a criminal case, he is not denude of his fundamental rights."      
The ACC has filed five separate leave-to-appeal petitions with the apex court, challenging two verdicts and three orders delivered by the HC in 2019 and this year over this issue.
While delivering the verdict on a writ petition, the HC on March 16 this year observed that a specific law or rule is needed soon regarding imposition of embargo on corruption suspects or accused from leaving the country.
There is no specific law or rule to ban people, against whom inquiries or investigations are underway in connection with corruption allegations or cases, from leaving the country though they have rights to free movement according to the Constitution, the HC said.
It ruled that the ACC has to take court permission to impose embargo on corruption suspects or accused from leaving the country during inquiry and investigations into the cases.  

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