Freedom of movement not absolute: LHC

Court sets aside earlier order allowing Sheikh Rashid to travel abroad

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 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 yield to the larger interest of society, the administration of justice, and the enforcement of law," said a 23-page judgment authored by LHC's Justice Jawad Hassan.

An LHC division bench, led by Justice Hassan, heard the federal government's intra-court appeal against a single bench order whereby Sheikh Rashid had been allowed to travel abroad for 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) seized of the matter.

The court observed that the single bench order was passed primarily based on a concession made by a law officer, which was beyond his lawful mandate and contrary to the statutory framework.

It held that no estoppel can arise from such a concession, as a statement made without authority cannot override a subsisting judicial command.

"Thus, we are inclined to allow this appeal and set aside the impugned order, with the observation that the application of the respondent, filed during the pendency of this appeal before the ATC, which was disposed of without being decided on merits on account of the pendency of this appeal, shall be deemed to be pending before the ATC.

"[The appeal] shall be decided on its own merits after hearing both parties, in accordance with law, without being influenced by any observation made herein," the judgment stated.

The court noted that in matters relating to criminal proceedings and the administration of justice, restrictions on the movement of an accused person are not uncommon.

"Where a person faces trial before a competent court, certain conditions may be imposed to ensure their availability during proceedings and to prevent the possibility of abscondence.

"Such restrictions are designed to maintain the efficacy of the criminal justice system and cannot be termed arbitrary merely because they limit the accused's personal liberty to some extent."

The court held that the restriction in Sheikh Rashid's case was not an arbitrary administrative measure but was intrinsically connected with ongoing judicial proceedings before the ATC.

The judgment emphasized that Article 15 of the Constitution does not confer an unfettered right to travel abroad when a person is facing trial under the Act.

Section 28-A of the Anti-Terrorism Act, a lawful statutory provision enacted in the public interest, operates as a reasonable restriction on the exercise of the right guaranteed under Article 15 of the Constitution.

"Accordingly, both provisions must be read together and harmoniously construed 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, where such restrictions emanate from lawful authority and are aimed at ensuring the proper administration of justice, they cannot be said to violate Article 15.

The judgment explained that when Article 15 is read in isolation, it may appear to grant an unrestricted 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 permissible constitutional limitations.

"Consequently, Article 15 of the Constitution and Section 28-A of the Act must be read together and harmoniously interpreted. The doctrine of harmonious construction requires that where a constitutional provision and a statutory enactment operate within the same field, the court should interpret them in a manner that gives effect to both rather than rendering either redundant."

The court observed that Article 15 lays down the general constitutional principle of freedom of movement, whereas Section 28-A provides a specific statutory framework regulating the movement of persons accused of serious offences.

"The latter, therefore, operates 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 vests discretion in the court to determine the duration of passport impounding 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 moved a fresh application before the ATC during the appeal's pendency, which was dismissed because the intra-court appeal was pending before the high court.

"The respondent was further cautioned to remain careful in future about concealing 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 appellate proceedings."

The judgment also criticized the role of the law officer, observing that the respondent had bypassed the statutory mechanism and obtained relief through a constitutional petition that was allowed primarily based on a statement made by the Additional Attorney General without proper examination of the statutory framework.

"Such conduct undermines the duty of a law officer, whose primary obligation is to assist the court with candour, honesty, and complete disclosure of facts, irrespective of the party being represented," the court observed.

The court concluded that the respondent ought to have first availed the remedy available before the ATC instead of invoking the constitutional jurisdiction of the high court in the manner he did.