(Civil Petition for Leave to Appeal No. 1340 of 2021 and analogous matters)
Authored by Barrister S. M. Shakil, Associate at Mahbub & Company.
Summary
The case arose from a travel embargo imposed by the Anti-Corruption Commission on G.B. Hossain, which the High Court temporarily relaxed and the State challenged. The Appellate Division held that although Article 36 allows restrictions on movement, such restrictions must be imposed strictly by law and not by executive direction. The Court found that the Anti-Corruption Commission Act, 2004 contains no authority permitting the Commission to restrict a citizen’s right to leave or re-enter Bangladesh. Any limitation on movement must be lawful, reasonable, proportionate, and justified in the public interest. The judgment reinforces that fundamental rights cannot be curtailed without explicit statutory backing and prompt judicial oversight.
Background
The case of Durnity Daman Commission v. G.B. Hossain and Others arose from Civil Petition for Leave to Appeal No. 1340 of 2021, which was heard conjointly with C.P. Nos. 1184 and 1009 of 2021, as well as C.P. Nos. 605 of 2020 and 1523 of 2021. Given that all the petitions emanated from substantially similar facts and raised analogous questions of law, the Hon’ble Appellate Division was pleased to hear and dispose of them by a common judgment.
Facts of the Case
In brief, Respondent No. 1, G.B. Hossain, as writ petitioner, instituted Writ Petition No. 4162 of 2021 challenging an order issued by the Durnity Daman Commission (Anti-Corruption Commission) directing the Special Superintendent of Police, Immigration (Airport) Special Branch, Bangladesh Police, Dhaka, to impose a travel embargo restraining him from leaving Bangladesh. The High Court Division issued a Rule and, by way of ad-interim relief, directed the writ respondents to permit the writ petitioner to leave and re-enter Bangladesh for a period of six months.
Submissions on Behalf of the Petitioner
The then Attorney General, appearing for the Petitioner before the Appellate Division, submitted that the right to freedom of movement guaranteed under Article 36 of the Constitution is not absolute. The provision expressly provides that the right is subject to any reasonable restrictions imposed by law in the public interest.
The learned counsels for the Petitioner argued that this qualification allows the Government and/or the Anti-Corruption Commission to impose legitimate restrictions on the freedom of movement in appropriate circumstances. In support, reliance was placed upon the preamble to the Anti-Corruption Commission Act, 2004, and in particular Sections 17 and 19, which empower the Commission to take measures to prevent corruption and ensure effective investigation.
It was further submitted that to prevent any person under investigation or inquiry from leaving or re-entering Bangladesh and thereby frustrating the purpose of the Act, the Commission is empowered to issue necessary orders of restraint. Any contrary interpretation, it was argued, would defeat the very object and purpose of the Anti-Corruption Commission Act, 2004.
Submissions on Behalf of the Writ Petitioner-Respondents
Conversely, the learned counsels for the Writ Petitioner-Respondents contended that, while Article 36 permits reasonable restrictions on movement, such restrictions must be imposed by law and in the public interest. Neither of these conditions, they argued, was satisfied in the present case.
They further submitted that the Anti-Corruption Commission Act, 2004 contains no provision authorizing the Commission to impose any travel embargo or to restrict a citizen’s right to move freely, reside, or settle in any place within Bangladesh, or to leave and re-enter the country. Accordingly, the impugned orders were without lawful authority and contrary to Article 36 of the Constitution.
In addition, reliance was placed on Article 13 of the Universal Declaration of Human Rights (UDHR), which provides that “everyone has the right to leave any country, including his own, and to return to his country.”
Observations of the Court
The Appellate Division observed that the freedom of movement guaranteed under Article 36 of the Constitution is a fundamental right that cannot be curtailed or denied arbitrarily or on mere administrative discretion, except in accordance with law. The test of reasonableness, the Court noted, must be determined objectively and not subjectively.
In this regard, the Court referred to the landmark decision of the Indian Supreme Court in Maneka Gandhi v. Union of India, AIR 1978 SC 597, wherein it was held that any procedure affecting personal liberty must be “…right, just and fair and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all…”
Key Findings of the Appellate Division
The Hon’ble Appellate Division disposed of the petitions with the following key observations:
- The fundamental right guaranteed under Article 36 is not absolute and may be restricted in certain circumstances.
- Restrictions under Article 36 must be imposed by law and must be reasonable and in the public interest.
- Any restriction imposed without statutory authority, by way of mere executive order, is unconstitutional.
- The legislative assessment of what constitutes a reasonable restriction is not conclusive and remains subject to judicial scrutiny.
- A restriction can only be deemed reasonable if it is non-arbitrary and proportionate to the public interest sought to be served.
- Absolute freedom would be detrimental to social order; hence, reasonableness demands a balance between individual liberty and societal interests.
- The right to leave the country and to hold a passport may be restricted if the person’s presence is required due to being charged with a criminal offence. However, mere involvement in a criminal case does not denude a person of fundamental rights.
- A restriction may be imposed to prevent an accused from evading the due process of law, but such restriction must be confirmed by the appropriate Court within three working days.
Comment and Analysis
The judgment of the Appellate Division represents a significant affirmation of constitutional safeguards surrounding freedom of movement under Article 36. It reinforces the principle that fundamental rights, though not absolute, cannot be curtailed except through lawful and reasonable means.
The Court’s emphasis on judicial supervision over executive action ensures a necessary check against administrative arbitrariness. Importantly, the reference to Maneka Gandhi aligns Bangladeshi constitutional jurisprudence with broader principles of fairness and proportionality in restricting personal liberty.
Conclusion
Therefore, while Article 36 allows lawful restrictions on the right to movement, such restrictions must be justified, proportionate, and judicially reviewable. Any executive or administrative embargo imposed without explicit statutory authorization or judicial oversight is inconsistent with the Constitution. The decision thus fortifies the protection of individual liberty while maintaining a pragmatic allowance for restrictions grounded in genuine public interest.
