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The Financial Express

SC observes in a full verdict

In organised society there can't be absolute liberty without social control

| Updated: December 04, 2021 14:18:28


In organised society there  can't be absolute liberty  without social control

In a full text of a verdict, the Appellate Division of the Supreme Court observed that in an organised society there can be no absolute liberty without social control. 

The apex court in its verdict also said, “Liberty is not unbridled licence. Some restrictions on freedom of movement are legitimate if imposed for limited purposes in a fair and non-discriminatory manner.” 

It also 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 in three working days of imposing restrictions 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 said in the 18 page-verdict which was released on December 1. 

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 an 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 non-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 needed in the public interest.” 

“Without the 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 the verdict that “The legislative view of what constitutes reasonable restriction shall not be conclusive and final that it shall be subject to the 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 the 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 the smooth functioning of the society.  Reasonableness demands proper balancing,” the SC judges said in the full text of the verdict. 

They also observed that “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 denuding 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 the 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 an embargo on corrupt suspects or accused from leaving the country during inquiry and investigations into the cases. 

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