CURTAIN CALL
Today, we shall be concluding our series on this vexed issue above.
THE LEGAL POSITION IN THE UNITED STATES OF AMERICA (continues)
In Corfield v. Coryell 6 Fed. Cas. 546, (E.D, Pa.1823), the US Supreme Court acknowledged the travel right in explaining the relationship between the “free ingress and regress” clause in Article IV of the Articles and the Privileges and Immunities Clause in the Constitution. The apex Court affirmed that the privileges and immunities of citizenship also encompass “the right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuit, or otherwise.”
In United States v. Guest 383 U.S. at 757- 58. (1966), the Court agreed that the Constitution did not explicitly provide for the right to travel since such a right was so elementary and conceived from the very beginning as to be regarded as a necessary concomitant of a stronger Union that the Constitution had created. Such a right is virtually unqualified.
The importance of the connectivity of interstate market and a common Union was emphasized in the 1969 case of Shapiro v. Thompson, 394 U.S. 618 (1969).
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Here, the court held thus:
“This Court long ago recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement.”
NOW THIS POSITION IN INDIA
In Satwant Singh Sawhney vs D. Ramarathnam, Assistant, 1967 AIR 1836, 1967 SCR (2) 525, the petitioner carried on the business of import, export and the manufacture of automobile parts and in connection with his business it was necessary for him to travel abroad.
For this purpose he was holding two valid passports when the Assistant Passport Officer at New Delhi and the Regional Passport Officer at Bombay, respectively, wrote to the petitioner calling upon him to surrender the two passports as the Central Government had decided to withdraw the passport facilities extended to him.
The petitioner then filed the present petition under Article 32 of the Indian Constitution, alleging that the Respondents’ action infringed his fundamental rights under Articles 21 and 14 of the Constitution; and prayed for a writ of mandamus directing the Respondents to withdraw and cancel the decision contained in the two letters.
It was contended, inter alia, on behalf of the petitioner, that the right to leave India, travel outside India and return to India is part and parcel of personal liberty guaranteed under Article 21 of the Constitution; that refusal to give a passport or withdrawal of one already given, amounts to deprivation of personal liberty.
Furthermore, the unfettered discretion given to the Respondents to issue or not to issue a passport to a person offends Article 14 of the Constitution.
The Respondents contested the petition mainly on the grounds that no fundamental right of the petitioner had been infringed upon; that the petitioner had contravened the conditions of an import license obtained by him; that investigations were going on against him in relation to offences under the Export and Import Control Act; and that the passport authorities were satisfied that if the petitioner was allowed to continue to have the passports, he was likely to leave India and not return to face a trial before a court of law; and that therefore it was necessary to impound his passport.
Further it was contended that the passport was a document which was issued to a person at the pleasure of the President in exercise of his political function and was a political document, and the refusal to grant a passport could not be a subject of review in a court of law.
For the same reason, it was contended that the petitioner had no right to have the passports issued to him. The argument sounds very much like that usually proffered by Nigerian security agencies, not so? The above argument by Indian government authorities sounds like an argument lifted straight from some pro-government lawyers in Nigeria, in helping the government to brazenly infringe on citizens’ cherished fundamental rights.
It was held that a writ of mandamus must issue to the Respondent to withdraw and cancel the decision contained in their letters. The court further held that a person living in India has a fundamental right to travel abroad under Article 21 of the Constitution and cannot be denied a passport because, factually, a passport is a necessary condition for travel abroad and the Government, by withholding the passport, can effectively deprive him, of his right.
This case is a further validation of the apex court’s position in the Olisa Agbakoba case. Similarly, in the case of Maneka Gandhi vs. UNION OF INDIA, A.I.R. 1978 S.C 597, on the 4th of July, 1977, Smt. Maneka Gandhi, had received a letter from the Regional Passport Office, Delhi, asking her to submit her passport within seven days from the day on which she had received such letter.
The letter stated that it had been the decision of the Government of India to impound her passport under Section 10(3) (c) of the Passport Act 1967. The grounds for such an impounding, as explained to her, was “public interest.”
Gandhi filed this petition. It was held by the Indian Supreme Court that Section 10(3)(c) of the Passport Act confers vague and undefined powers on the passport authorities. It is violative of Article 14 of the Constitution, since it does not provide for an opportunity for the aggrieved party to be heard.
It was also held to be violative of Article 21 since it does not affirm to the word “procedure” as mentioned in the clause, and the present procedure performed was the worst possible one. The Court, however, refrained from proffering any formal answer on the matter, and ruled, instead, that the passport would remain with the authorities till they deemed fit.
In E.P Royappa v. State of Tamil Nadu & Another, [1974] 2 SCR 348, the Indian Supreme Court had earlier held that Article 14 is one of the pillars of the Indian Constitution and hence cannot be bound by a narrow and inflexible interpretation. Article 14 should thus be given the widest interpretation possible, which also includes reasonableness and arbitrariness of certain provisions of the legislations.
Based on these observations, the court held section 10(3)(c) of the Passport Act to be violative of Article 14 of the Constitution.
Finally, in the case of Satwant Singh Sawhney v D. Ramarathnam, Assistant Passport Officer, Government of India, New Delhi &Ors (Supra), the Supreme Court held, by a majority judgment, that the expression ‘personal liberty’ in Article 21, takes in the right of locomotion and travel abroad, and under Article 21, no person can be deprived of his right to go abroad except according to the procedure established by law. This decision was accepted by Parliament and the infirmity pointed out by it was later set right by the enactment of the Passports Act, 1967.
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AND THIS CONCLUSION
From my humble analysis of Executive order 6, the subsequent travel ban on certain unnamed Nigerians and comparative, case analysis from some jurisdictions, it is my firm, but respectful submission that President Buhari’s Executive Order N0 6 and his subsequent ban on certain unnamed Nigerians, especially from the opposition and critical segments of the society, constitute flagrant and serial violations of the provisions of the 1999 Constitution, all known democratic precepts, cherished fundamental rights of citizens and the concept of the rule of law as ably espoused by Professor Albert Venn Dicey.
The government is hereby respectfully urged to immediately cancel the travel ban, withdraw the offensive and unconstitutional Executive Order N0 6, and give Nigerians their God-given free air to breath.
It was Billings Learned Hand, an American judge and judicial philosopher (1872 – 1961), the Author of “The spirit of Liberty”, who once wrote, “if we are to keep our democracy, there must be one commandment, thou shall not ration justice”. He also wrote, famously, what do we mean when we say first of all we seek liberty?
I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it.” I most humbly rest my case (The End).
THOUGHT FOR THE WEEK
“Where there is no vision, there is no hope.” (George Washington Carver).
LAST LINE
Nigerians, as you begin a new week, continue to engage me on a weekly basis in the national conversation, whilst always awaiting explosive topics of Sunday Sermon on the Mount of the Nigerian Project by Chief Mike A.A. Ozekhome, SAN, OFR, FCIArb, Ph.D, LL.D.
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