The International Crimes Tribunal’s chief prosecutor, Md Aminul Islam, has claimed that the Bangladesh Passport Order, 1973 leaves the government no legal scope to issue Sheikh Hasina a passport or travel document so that she can return to the country. Ministers appear to have refused her application, but without citing any law. The chief prosecutor’s is the only legal justification offered publicly.

It does not stand up.

First, the 1973 Order is about the passport in the context of leaving Bangladesh, not returning to it. Its preamble states explicitly that its purpose is “to regulate, in the public interest, the departure from Bangladesh of citizens of Bangladesh and other persons”.

Article 3 repeats the point: “No person shall depart or attempt to depart from Bangladesh unless he holds a valid passport or travel document.” (emphasis added)

Second, the legal provisions in the 1973 Order, and which the chief prosecutor relied on, allow the passport authority to refuse a passport but do not require it to do so.

The ICT prosecutor cited Article 6(1) which provides ten grounds that the passport authority “may refuse to issue a passport or travel document”. 

The specific grounds the prosecutor has referred to – sub-sections (c) and (e) - are when the applicant “has, at any time during the period of five years immediately preceding the date of his application, been convicted by a court in Bangladesh for any offence involving moral turpitude, and sentenced in respect thereof to imprisonment for not less than two years” and where the applicant is “evading or likely to evade appearance in any pending proceedings against him in a criminal court in Bangladesh.”

The key word in the Article is “may”. This gives the passport authority a discretionary power: it permits refusal, but it does not compel it. 

In addition, consistent with the Order’s purpose, these grounds are concerned with preventing people leaving the country, not coming back to it. Indeed the ICT prosecutor’s second ground does not even make sense as a travel document is what would allow her to appear in court, not prevent it. 

The Order does contain mandatory grounds – though media reports suggest the ICT prosecutor did not cite these. Article 6(2) states that the passport authority “shall refuse to issue a passport or travel document” on any of three grounds.

But each one applies only where the Government has formed a particular opinion. Until it does - and whether it does - is itself a choice for the government. There is no obligation to refuse. 

In any case, none of the three grounds fits Hasina’s case easily.

The first applies where the applicant, “in the opinion of the Government, is likely to engage outside Bangladesh in activities prejudicial to the sovereignty, integrity or security of Bangladesh.” 

A travel document that brings Hasina home would end her activities abroad, not enable them.

The second applies where the applicant is “reasonably suspected of evading or attempting to evade the duty to render any service which, under any law, he is required to render in the public interest.” 

This concerns legal obligations of service, and has no bearing on her situation.

The third applies where issuing a passport or travel document “will not be in the public interest.” This is the government’s only plausible route. But the government’s own stated public interest is getting Hasina back to Bangladesh so that her sentence can be carried out, which is exactly what a one-way travel document would achieve. To rely on this ground, the government would have to conclude that keeping her out now serves the public interest better than bringing her back.

The government might argue that a voluntary return would become a political spectacle or a threat to public order, or that it would undercut its extradition request to India. It might also argue that a passport would let her travel to a third country instead.

That last concern is easily met: Article 5(2) allows the passport authority to “restrict the number of countries to be endorsed upon such passport or travel document”, so a document could be issued that is valid only for travel to Bangladesh.

The first two arguments may be arguable. But relying on them would mean the government had decided they outweigh the public interest in bringing a death-row convict home to face her sentence.

Either way, that is a choice. Nothing in the Passport Order obliges the government to refuse Hasina a travel document under section 6(2) without it first coming to a particular view on an issue.

The chief prosecutor also cited Article 7. But this concerns passports that have already been issued, allowing the passport authority to “impound or cause to be impounded or revoke” a passport or travel document, including where the holder has been convicted of an offence involving moral turpitude. It says nothing about whether a new document can be issued. And, like Article 6(1), its powers are expressed in terms of what the passport authority “may” do. They are discretionary, not mandatory.

One thing though is clear. The government is under no legal obligation to refuse Hasina travel documents. The ICT Chief Prosecutor is wrong. He misstated the application of the Bangladesh Passport Order, 1973 on Sheikh Hasina’s request for a travel document. 

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David Bergman is a journalist. He divides his time between London and Dhaka