Recently the government has banned overseas travel of the top ministers and leaders of the immediate past Awami League government. The Special Branch of Police raided the houses of Abdur Razzak, Tofael Ahmed, Mohammad Nasim, Mohiuddin Khan Alamgir and Suranjit Sen Gupta last week to seize their passports. The Bureau of Anti-Corruption (BAC), as per the Home Minister Altaf Hossain Chowdhury, put requisition to the police following prima facie cases against them (The Daily Star October 27, 2001). The Minister also informed the journalists that the Police sent the file of his predecessor Mohammad Nasim to him maintaining all legal procedures. He however did not
clarify whether the passport was impounded first or if he gave the order first. It is also learnt that the BAC is taking preparations to file corruption cases against them soon.

Impounding passports of political leaders is not a new phenomenon. Almost all the previous governments had resorted to this unkind, 'often malicious' option allegedly to harass political opponents. The immediate past Awami League Government twice seized the passport of the ex-president cum dictator, H. M. Ershad, on his way to the United Kingdom and the People's Republic of China. In both the cases, the previous Government's actions did not receive the nod of the Higher Court of the republic. In fact, during subsequent court actions, such steps by the Authority were declared ultra vires, and unlawful.

The Appellate Division of the Supreme Court in the case of Hussain Md. Ershad vs. The State (2001) Star Law Report, 7 October 2001 observed, 'For such acts on the part of the respondent (the government) we are left to no other alternative but to observe that not only the order of impounding the passport of the appellant (HM Ershad) was tainted with mala fide motive and was not an act of fair play but also benefit of any reason to enable the appellant to avail of remedy as provided in Article 10 of the Passport Order, 1973 to the deprivation of his right to life in getting treatment of his heart ailment.'

Of passport and the passport order
A passport is an internationally recognized travel document attesting to the identity and nationality of the bearer. It signifies that the bearer has a right to receive the protection and assistance of his or her country's diplomatic and consular offices while abroad. It is also a request by the issuing government that foreign governments permit the bearer to travel or reside temporarily in their territories and give them all local lawful aid and protection. A passport is the most valuable document a citizen will carry abroad. It confirms that s/he is a citizen of Bangladesh.

Article 7 (2) (c) of the Bangladesh Passport Order, 1973 empowers a Passport Authority to impound or cause to be impounded or revoke a passport if it deems it necessary to do so in the interest of sovereignty, integrity or security of Bangladesh, or in the public interest. A Passport Authority according to Article 2 (d) of the Order means an officer or authority empowered under rules made under the Bangladesh Passport Order, 1973 to issue passports or travel documents. Secretary, Ministry of Home Affairs is a Passport Authority within the meaning of Article 2 (d) of the Bangladesh Passport Order, 1973.

Seizing of passport and the constitution

For realisation of the aim mentioned in the preamble and some of the fundamental principles of the state policy, Part III of the Constitution of the People's Republic of Bangladesh provides for a catalogue of rights as fundamental, which the state is mandated to guarantee for its citizenry. Article 36 of the Constitution states: 'Subject to any reasonable restrictions imposed by law in the public interest, every citizen shall have the right to move freely throughout Bangladesh, to reside and settle in any place therein and to leave and re-enter Bangladesh.'

No doubt for the right guaranteed in Article 36 a citizen can freely move throughout Bangladesh and to leave and re-enter Bangladesh. But that right is not an absolute one and is subject to reasonable restrictions imposed by law. The opportunity for the unscrupulous government officials and vindictive political leaders in power begins with the vagueness of the definition of reasonableness. As the nature, definitions or ingredients of the terminologies like 'sovereignty', 'integrity', and 'security of Bangladesh' are not clear, the executives tend to misuse the legal provision with personal malice or political vendetta. The Supreme Court of Bangladesh can examine the reasonability of the law and if
any restriction proves to be unreasonable, the court can declare the law illegal: "Legislation which arbitrarily invades the right cannot be said to contain the quality of reasonableness…

The determination by the legislature of what constitute a reasonable restriction is not final or conclusive; it is subject to supervision of courts"(Chintamoni Rao v. State of Madhya Pradesh, AIR 1951 SC 118).

In the case of State Vs. M.M Rahmatullah, the High Court Division of the Supreme Court of Bangladesh expressed its opinion on Article 7 (2) of the Bangladesh Passport Order, 1973 that apprehension on the part of the authority seizing the passport that the holder of the passport will not return to Bangladesh, if he is allowed to leave the country was not a ground for impounding of a passport of a citizen who wants to leave the country for medical check up and treatment. This argument can be applied to many identical situations. Right to travel abroad is a fundamental right as recognized in Article 36 of our Constitution. Supreme Court of India has taken a similar view in the case of Satwant Singh Vs. D. Ramarathnam, Assistant Passport Officer, New Delhi and others, AIR 1967 (SC) 1836 wherein it has been observed
that withdrawal of a passport given to an individual violates Articles 21 and 14 of Indian Constitution. This has already been referred by the High Court Division in the case of Hussain Md. Ershad Vs. The State (2001) SLR 07October 2001.

No one shall be condemned unheard

Although in the Passport Order there is no positive words requiring that the citizen whose passport is impounded shall be given an opportunity of being heard, yet, principle of audi alterem partem mandates that no one shall be condemned unheard. The power conferred under Article 7 (2) of the Passport Order to impound a passport is violative of fundamental right guaranteed under Article 36 of the Constitution. Such wide power, in fact, denies the principles and values of natural justice and seriously interferes with the constitutional right of the holder of a passport.

Article 13 of the Universal Declaration of Human Rights (UDHR) categorically asserts "1. Every one has the right to freedom of movement and residence within the borders of each State. 2. Everyone has the right to leave any country, including his own, and to return to his country." Last year Bangladesh acceded to the International Covenant on Civil and Political Rights considered by the human rights experts as the most influential human rights mechanism of the UN. Through this ratification Bangladesh has undertaken formally before the international community to respect and to ensure all individuals within its territory and subject to its jurisdiction civil and political rights in areas that comprise, among others:

• The right to self-determination (Article 1);
• Non-discrimination in the application of the Covenant and the availability of remedies to persons whose rights or freedoms have been violated (Article 2);
• Equal enjoyment of civil and political rights by men and women (Article 3);
• The right to life (Article 6);
• Prohibition of torture, inhuman or degrading treatment or punishment (Article 7);
• The right to liberty and security, and the conditions of arrest and trial (Article 9);
• Humane conditions of detention (Article 10);
• Equality before courts and tribunals, the right to be presumed innocence until proven guilty, minimum guarantees for persons charged, review of convictions, and compensation for miscarriage of justice (Article 14);
• The right to privacy and protection against attacks on the honour and the reputation of the person (Article 17);
• Freedom of opinion and expression (Article 19); Prohibition of war propaganda and advocacy of national, racial or religious hatred (Article 20);
• The right of peaceful assembly (Article 21);
• The right to freedom of association (Article 22);
• Protection of the family and equality of rights of spouses (Article 23);
• The rights of children and their protection (Article 24);
• The right and the opportunity to take part in the conduct of public affairs, directly or freely chosen representatives; and to vote and to be elected at genuine periodic elections (Article 25).

The new government must take due notice of the international commitments Bangladesh has made before the international community. It should resist the temptation to act prematurely and thereby harm its reputation like all previous governments. The government should form an 'inter ministerial committee' to work on the international obligations Bangladesh has undertaken. The Committee should co-opt expert members from legal fraternity. The Committee can issue detail guidelines after adequate deliberations to be followed by all concerned in their day-to-day routine work of governance. There should be coordination between the relevant ministries. The Office of Attorney General should take more pro-active role for the best interests of a democratic government.

Resisting political application of law

If seizing one's passport becomes a consequence of political decision, then increasingly law will be a tool of handfuls for oppression. Where there is qualified legal authority for such acts of seizure specially on the basis of the repeated assertions by the highest seat of justice, what other purpose could this serve other than cause intimidation and harassment to an individual, as well as infringement of one's constitutional rights. There may be prima facie cases against the former ministers. Let the Bureau of Anti-Corruption file the case and the court initiate the proceedings. Let the court dictate the terms not the Ministry of Home Affairs. The Ministry of Home Affairs should remember
that any trial will take long time to resolve a case and it can not impound the passport of any person for such a long period unless, of course, the court orders for the same. The judicial precedents only confirm the reverse trend as clearly reflected in some of the recent pronouncements of the Supreme Court. The office of the Attorney General and the Ministry of Law, Justice and Parliamentary Affairs should advice the government in the right direction upholding the rule of law and constitutional spirit. Recurrence of such highhandedness only invites the arbitrariness of the executives at the cost of civil liberties and freedom.