ISLAMABAD:
The Lahore High Court (LHC), setting aside its earlier decision allowing former federal minister Sheikh Rashid Ahmed to travel abroad for Umrah, has held that the freedom of movement enshrined in Article 15 of the Constitution is not absolute.
“Although the Constitution guarantees freedom of movement as a fundamental right, it is not absolute in nature. The framers of the Constitution expressly qualified this right by subjecting it to “such reasonable restrictions as may be imposed by law in the public interest.”
“The constitutional system therefore recognizes that an individual’s right to freedom of movement must at times give way to the broader interests of society, the administration of justice and the enforcement of the law,” says a 23-page judgment written by Justice Jawad Hassan of the LHC.
An LHC division bench, headed by Justice Hassan, heard the federal government’s intra-judicial appeal against a one-time order allowing Sheikh Rashid to travel abroad for Umrah.
The order held that the power to regulate the passport of an accused under Section 28-A of the Anti-Terrorism Act, 1997, including permission to travel abroad, rests exclusively with the Anti-Terrorism Court (ATC) hearing the case.
The court observed that the order of the single court was passed primarily on the basis of a concession made by a judicial officer, which was beyond its legal mandate and contrary to the statutory framework.
It held that no estoppel can arise from such a concession, since a declaration made without authorization cannot override an existing court order.
“Thus, we are inclined to allow this appeal and set aside the order assailed, observing that respondent’s motion, filed while this appeal was pending before the ATC, which was disposed of without being decided on the merits due to the pendency of this appeal, shall be deemed pending before the ATC.
“[The appeal] shall be decided on merits after hearing both parties, in accordance with law, without being influenced by any observation made herein,” the judgment said.
The court noted that in cases relating to criminal proceedings and the administration of justice, restrictions on the movement of an accused are not uncommon.
“When a person is tried before a competent court, certain conditions may be imposed to ensure their availability during the procedure and prevent any possibility of absconding.
“Such restrictions are intended to maintain the efficiency of the criminal justice system and cannot be characterized as arbitrary simply because they limit the personal freedom of the accused to some extent.”
The court ruled that the restriction imposed in Sheikh Rashid’s case was not an arbitrary administrative measure but was intrinsically linked to the ongoing legal proceedings before the ATC.
The judgment highlights that Article 15 of the Constitution does not confer an unlimited right to travel abroad when a person is tried under the law.
Section 28-A of the Anti-Terrorism Act, a legal provision enacted in the public interest, constitutes a reasonable restriction on the exercise of the right guaranteed under Article 15 of the Constitution.
“Accordingly, both provisions must be read together and interpreted harmoniously to maintain a balance between individual liberty and the effective administration of justice.”
The Court reiterated that Section 15 does not confer an absolute right of movement, as it is expressly subject to reasonable restrictions imposed by law in the public interest.
Therefore, when such restrictions emanate from a legitimate authority and aim to ensure the proper administration of justice, they cannot be considered to violate Article 15.
The judgment explains that, read in isolation, Article 15 may appear to grant an unrestricted right of movement.
However, when one examines the qualifying phrase – “subject to reasonable restrictions imposed by law in the public interest” – it becomes clear that Section 28-A of the Anti-Terrorism Act clearly falls within the permissible constitutional limitations.
“Therefore, Article 15 of the Constitution and Section 28-A of the Act must be read together and interpreted harmoniously. The doctrine of harmonious construction requires that where a constitutional provision and a legislative enactment operate in the same area, the court should interpret them in a manner which gives effect to both rather than making them redundant.”
The Court observed that Article 15 sets out the general constitutional principle of freedom of movement, while Article 28-A provides a specific statutory framework regulating the movement of persons accused of serious offenses.
“The latter therefore functions as a legal and reasonable restriction within the meaning of Article 15 of the Constitution. It is also significant that the restriction contemplated under Section 28-A is neither arbitrary nor absolute, as it confers on the court discretion to determine the duration of seizure of passport and to consider applications for foreign travel in appropriate circumstances.
“Thus, the restriction is regulatory in nature and subject to judicial review.”
The court also noted that Sheikh Rashid had filed a fresh application before the ATC while the appeal was pending, which was dismissed because the intra-judicial appeal was pending before the High Court.
“Defendant was further warned to remain cautious in the future about concealment of these proceedings. Such conduct is significant because it indicates that he was fully aware of the proper forum for seeking such relief and of the fact that the present appeal was pending before this court. By approaching the ATC while the matter was pending, defendant appears to have attempted to circumvent the appeals process.”
The judgment also criticized the role of the jurist, observing that the respondent circumvented the statutory mechanism and obtained relief through a constitutional petition which was allowed primarily on the basis of a declaration made by the Additional Attorney General without proper consideration of the statutory framework.
“Such conduct undermines the duty of an officer of the court, whose primary obligation is to assist the court with frankness, honesty and full disclosure of the facts, irrespective of the party represented,” the court observed.
The court concluded that the respondent should have first availed himself of the remedy available before the ATC instead of invoking the constitutional jurisdiction of the High Court as he did.
