Right to Freedom of Movement under the Constitution of Bangladesh

Introduction

Freedom of movement is a human right, a person's ability to travel throughout their own country without restriction, as well as their ability to enter and exit the nation of which they are a citizen. Article 13 of the Universal Declaration of Human Rights (UDHR) recognised freedom of movement within and beyond the borders. The UDHR lists thirty rights and freedom that are universally recognised, and freedom of movement is one of them.[1] This right is further protected under Article 12 of the International Covenant on Civil and Political Rights (ICCPR). In the Constitution of Bangladesh, freedom of movement is enshrined as a fundamental right under Article 36.

Significance of Freedom of Movement

Article 36 of the Constitution of Bangladesh 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.” This provision of the Constitution secures the right of a person to move freely throughout Bangladesh, to reside where he will work for his livelihood and pursuits of happiness.[2] It also ensures to leave and re-enter Bangladesh so far as it is in accordance with law. In fact, the right to travel abroad includes the right to a passport, as it is essential for travelling abroad.

The judiciary of our country also construes the right to passports in the scheme of the right to movement. In Syed Makbool Hossain v Bangladesh, [3] it was held that refusal to issue a passport is a violation of the freedom of movement. Again, in Ekram Ibrahim v Bangladesh, [4] it was decided that arbitrary revocation of a passport without giving reasonable opportunity to show cause is unfair and a violation of fundamental rights guaranteed in the Constitution. The same principle was established in H M Ershad v Bangladesh, [5] where it was held that confiscation of a passport without giving the holder fair opportunity to be heard is a violation of freedom of movement.

Freedom of movement is a fundamental aspect of personal liberty, allowing individuals to travel, reside, and work freely within the country. It is also necessary to facilitate economic growth by allowing people to move to areas with better employment opportunities. Furthermore, it is a cornerstone of international human rights. Freedom of movement facilitates global mobility, enabling people to travel for education and employment. In Kent v Dulles[6], it was established that the right to movement is part of the liberty, of which the citizen cannot be deprived without due process of law.

Scope of Freedom of Movement

Freedom of movement is not an absolute right. It is subject to reasonable restrictions imposed by law for the benefit of public interest. But such restrictions must not violate any provision of law or oppose public interest.[7] In Oali Ahad v Bangladesh, [8]the court opined that there is no fixed standard to determine reasonable restriction, and it may vary depending on the varying circumstances. Generally, where the restrictions imposed by law have no reasonable nexus with the evil sought to be removed can be called unreasonable restriction.[9] Thus, arbitrary restrictions on freedom of movement are unreasonable and unconstitutional. Again, there is no precise definition regarding ‘public interest’. In regard to freedom of movement, public interest may include many things such as public security, public morality and public order.[10] Public interest may also encompass public health. For instance, during the COVID-19 pandemic, there were some restrictions on movement considering public health. In Gopalnath v Madras,[11] it was held that in the case of infectious disease, freedom of movement has to be curtailed. Moreover, restrictions could be imposed considering public security.[12] In Durnity Daman Commission v G. B. Hossain and others, [13] it was decided that the fundamental right guaranteed under Article 36 is not an absolute right, and therefore it provides eight points guideline regarding freedom of movement.

Moreover, Article 12(3) of ICCPR also duly recognises and permits the imposition of reasonable restrictions upon the right to freedom of movement which is necessary in a democratic society for the protection of national security, public order, public health or morals, or the rights and freedoms of others. However, such restrictions must not be vague and indefinite. In Mustafa Ansari v Deputy Commissioner, [14] it was decided that a restriction that is indefinite would be unreasonable. Furthermore, as freedom of movement constitutes a fundamental right enshrined in the Constitution of Bangladesh and is subject to judicial enforcement[15], any individual who is aggrieved may seek redress by filing a writ petition before the High Court Division under Article 102 of the Constitution.

Conclusion:

The right to freedom of movement is a fundamental human right recognised by both the Constitution of Bangladesh and different international instruments such as UDHR and ICCPR. It is essential for the development of the personal freedom of every citizen of the country. National and international legal instruments along with landmark cases across various jurisdictions of the world have reinforced the significance of the right to freedom of movement.

[1]‘Universal Declaration of Human Rights’ (Amnesty International, 11 December 2023) <https://www.amnesty.org/en/what-we-do/universal-declaration-of-human-rights/>

[2] Mahmudul Islam, Constitutional Law of Bangladesh (3rd edn, Mullick Brothers 2023) 307.

[3] Syed Makbool Hossain v Bangladesh (1992) 44 DLR 39.

[4] Ekram Ibrahim v Bangladesh (1995) 47 DLR 256.

[5] H M Ershad v Bangladesh (2001) BLD (AD) 69.

[6] Kent v Dulles, 357 US 116.

[7] Shapiro v Thompson (1969) 394 US 618.

[8] Oali Ahad v Bangladesh (1974) 26 DLR 376.

[9] Municipal Corp v Jan Mohammad (1986) AIR (SC)1205.

[10] Ram Narayan v U P (1984) AIR (SC) 1213.

[11] Gopalnath v Madras (1950) AIR (SC) 27.

[12] Korematsu v U S (1994) 323 US 214.

[13] Civil Petition for Leave to Appeal No. 1340 of 2001.

[14]  Mustafa Ansari v Deputy Commissioner (1965) 17 DLR 553.

[15] Constitution of the People’s Republic of Bangladesh 1972, art 44.