ISLAMABAD:
The Lahore High Court (LHC), setting aside its earlier order allowing former federal minister Sheikh Rashid Ahmed to travel abroad for Umrah, ruled 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, the same is not absolute in nature. The framers of the Constitution expressly qualified this right by making it “subject to reasonable restrictions imposed by law in the public interest.”
“The constitutional scheme therefore recognizes that an individual’s right to move freely must sometimes yield to the larger interest of society, the administration of justice and the enforcement of law,” said a 23-page judgment authored by LHC Justice Jawad Hassan.
An LHC division bench headed by Justice Hassan heard the federal government’s appeal within the courts against a single bench 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) seized of the case.
The court observed that the order was passed primarily on the basis of an admission by a lawyer which was outside his legal mandate and contrary to the statutory framework.
It held that no estoppel can arise from such an admission as a statement made without authority cannot override a subsisting judicial command.
“Thus, we are inclined to allow this appeal and set aside the order appealed from, with the observation that the defendant’s application, filed during the pendency of this appeal to the ATC, which was disposed of without merit due to the pendency of this appeal, must be deemed to be pending before the ATC.
“[The appeal] shall be decided on its own after hearing both parties, in accordance with law, without being influenced by any observations therein,” the judgment said.
The court noted that in criminal and judicial matters, restrictions on the movement of an accused person are not unusual.
“If a person faces trial in a competent court, certain conditions may be imposed to ensure their availability during the trial and to prevent the possibility of relaxation.
“Such restrictions are designed to maintain the efficiency of the criminal justice system and cannot be characterized as arbitrary simply because they limit the personal liberty of the accused to some degree.”
The court found that the restriction in Sheikh Rashid’s case was not an arbitrary administrative measure but was inextricably linked to ongoing legal proceedings at the ATC.
The judgment emphasized that Article 15 of the Constitution does not grant an unlimited right to travel abroad when a person faces trial under the law.
Section 28-A of the Anti-Terrorism Act, a statutory provision enacted in the public interest, acts as a reasonable restriction on the exercise of the right guaranteed under Article 15 of the Constitution.
“Therefore, both provisions must be read together and harmoniously interpreted to maintain a balance between individual liberty and effective administration of justice.”
The Court reiterated that Article 15 does not confer an absolute right to movement as it is expressly subject to reasonable restrictions imposed by law in the public interest.
Where such restrictions arise from legal authority and are intended to ensure the proper administration of justice, they cannot therefore be said to violate Article 15.
The judgment explained that when read in isolation, Article 15 may appear to grant an unrestricted right to movement.
But when the qualifying phrase – “subject to reasonable limitations imposed by law in the public interest” – is considered, it becomes clear that Section 28-A of the Anti-Terrorism Act falls squarely within permissible constitutional limitations.
“Consequently, 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 statutory provision operate within the same field, the court should interpret them in a manner that gives effect to both rather than making both parts redundant.”
The court noted that Article 15 lays down the general constitutional principle of freedom of movement, whereas Section 28-A provides a specific legal framework governing the movement of persons accused of serious offences.
“The latter therefore acts as a lawful 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 gives the court a discretion to determine the duration of the passport seizure and to consider requests for travel abroad in appropriate circumstances.
“Thus, the restriction is regulatory in nature and subject to judicial oversight.”
The court also noted that Sheikh Rashid had made a fresh application to the ATC during the appeal, which was rejected because the appeal within the court was pending at the High Court.
“Respondent was further cautioned to be careful in the future to conceal the present case. Such conduct is significant as it indicates that he was fully aware of the proper forum to seek such relief and of the pendency of the present appeal in this court. By approaching the ATC while the case was sub judice, the respondent appears to have attempted to circumvent the appeal process.”
The judgment also criticized the role of counsel, noting that the respondent had circumvented the statutory mechanism and obtained relief through a constitutional petition that was allowed primarily based on the opinion of the Additional Attorney General without proper examination of the statutory framework.
“Such conduct undermines the duty of a lawyer whose primary obligation is to assist the court with honesty, candor and full disclosure of the facts, regardless of which party is represented,” the court noted.
The court concluded that the respondent should have first used the remedy available to the ATC instead of invoking the High Court’s constitutional jurisdiction in the manner he did.
