Buhari’s travel ban on targeted Nigerians: An extreme panicky measure of desperation (5)

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).

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.

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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