ISLAMABAD:
The Lahore High Court (LHC), quashing its earlier order allowing former federal minister Sheikh Rashid Ahmed to travel abroad to perform 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 have expressly qualified this right by making it ‘subject to reasonable restrictions imposed by law in the public interest.’
“The constitutional scheme, therefore, recognizes that the right of an individual to move freely must sometimes give way to the broader interest of society, the administration of justice and the application of law,” said a 23-page judgment written by LHC judge Jawad Hassan.
A division bench of the LHC, headed by Justice Hassan, heard the federal government’s internal appeal against a single court order by which Sheikh Rashid had been allowed to travel abroad to perform Umrah.
The order held that the authority to regulate the passport of an accused under Section 28-A of the Anti-Terrorism Act, 1997, including permission to travel abroad, lies exclusively with the anti-terrorism court (ATC) dealing with the matter.
The court observed that the single court’s order was passed primarily on the basis of a concession made by a judicial officer, which went beyond his statutory mandate and was contrary to the legal framework.
He held that no legal impediment can arise from such a grant as a declaration made without authority cannot invalidate a subsisting court order.
“Therefore, we are inclined to uphold this appeal and set aside the impugned order, with the observation that the request of the defendant, filed during the pendency of this appeal before the ATC, which was dismissed without having been resolved on the merits due to the pendency of this appeal, will be considered pending before the ATC.
“[The appeal] “will be decided on its own merits, after hearing both parties, in accordance with the law, without being influenced by any of the observations made here,” the ruling states.
The court noted that in matters related to criminal proceedings and the administration of justice, restrictions on the movement of an accused person are not uncommon.
“When a person faces trial before a competent court, certain conditions may be imposed to ensure his availability during the process and prevent the possibility of absconding.
“Such restrictions are designed to maintain the effectiveness of the criminal justice system and cannot be characterized as arbitrary simply because they limit to some extent the personal freedom of the accused.”
The court held that the restriction in Sheikh Rashid’s case was not an arbitrary administrative measure but was intrinsically related to ongoing judicial proceedings before the ATC.
The ruling highlighted that Article 15 of the Constitution does not confer an unrestricted right to travel abroad when a person faces trial under the law.
Article 28-A of the Anti-Terrorism Law, a legal provision enacted in the public interest, acts as a reasonable restriction on the exercise of the right guaranteed in 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 Article 15 does not confer an absolute right of movement, as it is expressly subject to reasonable restrictions imposed by law in the public interest.
Consequently, when such restrictions emanate from a legal authority and are intended to ensure the proper administration of justice, they cannot be said to violate Article 15.
The ruling explains that when Article 15 is read in isolation, it may appear to grant an unlimited right of movement.
However, when the qualifying phrase – “subject to reasonable restrictions imposed by law in the public interest” is considered, it becomes evident that Section 28-A of the Anti-Terrorism Act falls squarely within the permissible constitutional limitations.
“Accordingly, Article 15 of the Constitution and Article 28-A of the Act must be read together and interpreted harmoniously. The doctrine of harmonious interpretation requires that where a constitutional provision and a statutory provision operate within the same field, the court must interpret them in a manner that gives effect to both instead of making either of them redundant.”
The court observed that Article 15 establishes the general constitutional principle of freedom of movement, while Section 28-A provides a specific legal framework regulating the movement of persons accused of serious crimes.
“The latter, therefore, operates as a legal and reasonable restriction within the meaning of Article 15 of the Constitution. It is also important that the restriction contemplated in Section 28-A is not arbitrary or absolute, as it confers discretion on the court to determine the duration of seizure of passports and to consider applications for foreign travel in appropriate circumstances.
“Therefore, the restriction is regulatory in nature and is subject to judicial control.”
The court also noted that Sheikh Rashid had filed a fresh application before the ATC during the pendency of the appeal, which was dismissed as the intra-judicial appeal was pending before the high court.
“The respondent was further warned to be careful in future to conceal the present proceedings. Such conduct is significant as it indicates that he was fully aware of the proper forum for seeking such relief and of the pendency of the present appeal before this court. By approaching the ATC while the matter was sub judice, the respondent appears to have attempted to circumvent the appeal procedure.”
The judgment also criticized the role of the judicial officer, observing that the respondent had circumvented the legal mechanism and obtained relief through a constitutional petition which was allowed mainly on the basis of a statement made by the Additional Solicitor General without proper examination of the legal framework.
“Such conduct undermines the duty of a judicial officer, whose primary obligation is to assist the court with candor, honesty and full disclosure of facts, regardless of the party represented,” the court observed.
The court concluded that the respondent should have first availed the remedy available before the ATC instead of invoking the constitutional jurisdiction of the high court as it did.
