Every citizen of Bangladesh has the right to leave and re-enter the country as guaranteed by Article 36 of the Constitution of the People’s Republic of Bangladesh (Constitution). Minimum curtailment of this fundamental right except as provided by law will be a violation of the constitutional mandate. As an accused person is presumed innocent until proven guilty, he has the same rights as an ordinary citizen unless there is a legal mechanism to restrict such rights.
In Bangladesh, imposing travel ban and thereby restricting an accused from going abroad is quite a common practice, especially by the lower judiciary and the Anti-Corruption Commission (ACC/Commission). However, there is no single provision in any law, which empowers the courts or other authorities to impose travel ban on an accused. A question, therefore, inevitably arises as to whether such persons can be restricted to travel abroad in absence of any law authorizing such restriction.
This essay will primarily probe into this question. Additionally, it will then discuss whether such travel ban is practically required.
Conditions of Travel Ban on Accused
For properly understanding the scope of imposing travel ban, discussion on Article 36 of the Constitution is necessary. Article 36 provides that every citizen has, inter alia, the right to leave and re-enter Bangladesh, subject to ‘reasonable restrictions imposed by law in the public interest’. Here, it is seen that the right has not been made absolute, rather the article allows reasonable restrictions. However, before putting such restrictions, three conditions must be fulfilled:
- Such restriction is imposed by law; and
- It is reasonable; and
- It is for public interest.
Restriction Imposed by Law
Most importantly, the restrictions must be imposed by law and not otherwise. In Bangladesh, however, neither the Code of Criminal procedure, 1898 (CrPC) nor any other special laws contain any provision which empowers executive or judicial authorities to impose travel ban on an accused.
Recently in Md Ataur Rahman alias Ataur Rahman v Government of Bangladesh (Ataur Case), an issue was raised before the High Court Division (HCD) that whether the ACC can order travel ban of an accused. In this case, the petitioner was restrained from going abroad by an ACC order while a graft allegation against him was under enquiry by the Commission. The observation of the HCD was that to impose restriction on right to movement, two conditions must be fulfilled: it should be imposed by law; and it should be for public interest. If either of them is absent, such imposition will be unconstitutional.
The HCD also observed that no authority can impose travel ban on an accused in absence of any law in this regard. It has, however, affirmed the reality that in many cases the accused persons leave the country on different pleas, and later it becomes impossible to bring them before the court of justice. Hence, it has become a time-demand, as the HCD observed, to promulgate necessary laws to regulate the movement of an accused at the enquiry or investigation stage of graft, money-laundering or other cases.
To fulfill the legislative vacuum, the HCD also provided some interim directive guidelines. It expanded the applicability of such directions on all the courts and investigating agencies, which can easily be inferred from the use of language, eg ‘in graft or money-laundering cases or other cases’, ‘concerned investigation agency’, ‘concerned court’ etc.
The HCD directs that until such laws are promulgated:
- Concerned investigating agencies may apply to the courts having jurisdiction for putting embargo on the accused.
- The court shall consider the application and may put embargo for maximum 60 days or pass such other orders as necessary.
- The aggrieved party may also apply to the concerned court for withdrawal or cancellation of such order, and the court may pass necessary orders after hearing both parties and considering the documents submitted, if any.
- On application for extension of embargo period, the court may, after hearing both parties and considering the documents submitted, pass orders as necessary.
Finally, the HCD declared the embargo ordered by the ACC illegal and allowed the petitioner to go abroad. However, the court directed that the petitioner while going abroad should give the ACC necessary information, ie which country he was visiting, his address, mobile number and email which he would use while staying there, so that the ACC could order him to appear before it for inquiry or investigation purpose.
The Appellate Division (AD), on hearing the Leave to Appeal against the HCD’s decision discussed above, observed additionally that if the accused tries to leave the country to avoid the course of legal proceedings, and immediate restriction is needed, he may be restricted without court’s order. Such restrictions, however, must be confirmed by the court within three days.
One thing should be mentioned at this stage that according to Articles 111 and 112 of the Constitution, any direction passed by the HCD or AD is binding on all executive and judicial authorities. In Bangladesh National Women Lawyers Association v Bangladesh and ors, the HCD, considering the inadequacy of safeguards against sexual abuse and harassment of women at work places and educational institutions, issued certain directives in the form of guidelines to fill up the legislative vacuum ‘under the mandate and within the meaning of Article 111 of the Constitution.’
So, it is clear from the above discussion that the directions of the HCD in Ataur Case can well be considered ‘law’ for imposing travel ban.
Reasonableness of Restriction
The word ‘reasonableness’ has two dimensions: substantive reasonableness and procedural reasonableness. Substantive reasonableness generally requires that the restriction have a connection with the evil sought to be remedied; it is not in excess of the requirement of the object of the law; not for an indefinite period of time; and the executive authority has not been given wide discretion to impose restriction without providing any safeguards against arbitrary exercise of power. In this particular case, the restriction ie travel ban is for definite period (60 days) and the executive’s discretionary power has been checked by the court, and hence may be considered reasonable.
To be procedurally reasonable, the restriction needs to be imposed after complying with the norms of natural justice, ie the person to be restricted must be heard before passing the order etc. In case of emergency, if hearing is not possible prior to passing the order, he shall be offered, after passing the order, an opportunity of showing that the restriction order is unwarranted or arbitrary. As provided for in the Ataur Case, the restriction, ie travel ban is to be granted only after hearing both parties, and the aggrieved party can challenge such ban. So, the restriction can also be considered procedurally reasonable.
Restriction in Public Interest
The term ‘public interest’ is vague, and may within its ambit include public order, public security, and public morality. Just like dangerous persons, eg habitual criminals and goondas may be arrested and detained in custody for public order and safety, they may also be restricted from leaving the country for the same reason, ie public interest. If arrest and detention of an accused—which put more restriction on his right to free movement than travel ban—can be justified, putting embargo should also, generally, pass the threshold of public interest. The observation of the HCD in Ataur case suggests the same. However, it should be kept in mind that what serves public interest in a given case may not do the same in others. In special circumstances, special consideration may be needed.
Is It Practically Necessary to Impose Travel Ban?
The object of travel ban on an accused is to ensure that he does not escape the court’s jurisdiction and to ensure his presence during trial. So far as provisions of arrest are there, perhaps there is little need for travel ban to serve the aforementioned purpose. As per the general provisions of the CrPC and other special laws, police can arrest an accused person with or without warrant and may, with the permission of a Magistrate, detain him in custody to ensure his presence. Apart, in urgency, for arresting an accused who is about to leave the country to escape trial, police may take help from other branches of police, eg immigration police. Hence, the process of arrest seems more realistic than travel ban.
It can, however, be argued that sometimes situation may arise where arrest is not required immediately, but it is necessary that the accused is within the jurisdiction of the courts. For instance, where there is a reasonable apprehension that the allegations will be proved true, and the accused will not return to the country once he goes abroad. In such cases, travel ban may, as argued, be necessary. In this regard, the AD in State v M M Rahmatullah viewed that imposing restriction only in an apprehension that ‘the person will not return the country after leaving’ is illegal if no reasonable grounds and cogent reasons are shown. As to what are those reasonable grounds or cogent reasons, the observation of Bombay High Court in Hardeep Singh Arora v The State of Maharashtra is that someone’s right to travel abroad can be curtailed to secure his presence in, and facilitate, judicial proceedings. The court, however, observed that instead of putting embargo on leaving the country, the court may grant permissionon conditions that he will appear to the court for trial whenever required. This conditional permission also seems more practical than a complete ban on leaving the country.
In any case, however, detailed guidelines should be formulated by the legislature. More importantly because, the directives given by the HCD in Ataur Case have lacking, eg whether or how travel ban can be imposed in enquiry stage in Anti-corruption cases; up to which period duration of travel ban can be extended; which documents are to be submitted to courts etc.
It can be submitted that during the investigation period the court (sometimes the investigating agency subject to post-approval by the court) may impose travel ban on an accused. Because, all the conditions for restricting one’s right to free movement are there: considering the directives given in Ataur Case as law in absence of any parliamentary legislation, such directives are necessary for public interest and are reasonable.
However, in Bangladesh—where the investigating agencies frequently fail to perform their duties on time, and trial runs for years or even ages—such absolute ban seems disadvantageous for the accused. Rather, he had better be permitted to leave the country with some conditions, eg to appear before court or to facilitate the investigation. Because, if it is allowed to restrict the accused travel abroad only because he is required to appear in a court in future, the fundamental right to leave and re-enter the country as envisaged by the Constitution will be immaterial.
 In this article, ‘travel ban’ denotes ban on travelling abroad only, not traveling within the territory. The word ‘embargo’ has also the same meaning, and is used interchangeably.
 See, for example, Writ Petition Nos 4162, 4437, 824 of 2021, 13300 of 2019 and 1046 of 2021.
 Writ Petition No 824 of 2021.
 See ibid 9–11.
 Civil Petition (CP) for Leave to Appeal Nos 1340 of 2021 with CP No 1184, 1009 of 2021 & CP No 605 of 2020, 1523 of 2021.
 Amzad Hossain v State 62 DLR (AD) 288 cited in Mahmudul Islam, Constitutional Law of Bangladesh (3rd edn, Mullick Brothers 2012) 917.
 14 BLC 694.
 Mahmudul Islam, Constitutional Law of Bangladesh (3rd edn, Mullick Brothers 2012) 142–3, 311; Abul A’la Moudoodi v West Pakistan 17 DLR (SC) 209.
 Islam (n 8) 144.
 ibid 310.
 Mail from Mohammad Mahbubur Rahman to author (30 April 2021).
 2 BLC (AD) 157.
 Writ Petition No 4695 of 2017.