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Petitioner: Dr. JOSEPH WILSON---Petitioner VS Respondent: FEDERATION OF PAKISTAN through JUDGMENT
Court Name: Islamabad High Court Judge(s): Aamer Farooq, Miangul Hassan Aurangzeb Title:Dr. JOSEPH WILSON---Petitioner vs FEDERATION OF PAKISTAN through
JUDGMENT
Reported As: 2017 P Cr. L J 1569 Result: Petition allowed Judgment JUDGMENT MIANGUL HASSAN AURANGZEB, J.---Through the instant 'petition under Article 199 of the Constitution, the petitioner, Dr. Joseph Wilson, seeks the quashment of memorandum dated 03.03.2017, issued by Ministry of Interior, Government of Pakistan (respondent No,1), whereby his name was placed on the Exit Control List ("E.C.L.") on the recommendation of the National Accountability Bureau (respondent No,2). The record shows that the petitioner is a citizen of Pakistan by birth, and also a naturalized citizen of Canada. The petitioner is a lawyer by training, and has received an L.L.M. degree from the University of Georgia (U.S.A.) in 1995; a further L.L.M. degree from McGill University, Montreal (Canada) in 1996; and a degree of Doctorate of Law from McGill University, Canada, in 2002. The petitioner served as a Member of the Competition Commission of Pakistan ("C.C.P.") for three consecutive terms of three years each until November, 2016. On 26.07.2013, the Federal Government notified the petitioner as the Acting Chairman, C.C.P., under Section 16 of the Competition Commission Act, 2010 ("the 2010 Act"). The petitioner served as the Acting Chairman, C.C.P. from 22.08.2013 to 22.12.2014. The petitioner was issued call-up notices dated 26.01.2016, and 28.04.2016, by respondent No,2 requiring him to record his plea regarding appointments made in C.C.P., during the period when the petitioner served as Acting Chairman of C.C.P., and when a ban on appointments had been imposed by the Federal Government. The petitioner was also required to record his plea regarding the hiring of the building for the Regional Office of
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the C.C.P. at Karachi; the procurement of furniture of the said office; and sanctioning of foreign visits for employees of C.C.P. without fulfilling the requisite formalities. The petitioner submitted written replies to the first call up notice on 11.02.2016, and to the second call up notice on 03.05.2016. During the petitioner's visit to respondent No,2's office on 25.07.2016, he surrendered his passports on the directions of the Inquiry Officer. On 26.10.2016, the petitioner filed writ petition No,3867/2016, before this Court, seeking quashment of the proceedings initiated against him by respondent No,2. The petitioner had also sought the return of his passports. On 10.11.2016, respondent No,2 returned the petitioner's passports. After the petitioner came to know that an investigation has been authorized against him, and that he had been accused of causing a loss of Rs,10 million to the national exchequer, he filed an application (C.M.No,4867/2016) before this Court for temporary relief. Vide order dated 14.12.2016, this Court directed respondent No,2 to act strictly in accordance with the law, and not to harass the petitioner or take adverse action against him. Vide memorandum dated 03.03.2017, respondent No,1 placed the petitioner's name on E.C.L. According to the said memorandum, the petitioner had been accused of misusing his authority in making appointments in the C.C.P., causing a loss to the national exchequer to the tune of Rs,21 million. The petitioner was given no prior notice regarding the placement of his name on the E.C.L. On 14.03.2017, when the petitioner was going to travel from Islamabad to Berlin for a talk at an International Conference organized by the German Cartel Office, he was informed at the immigration counter at the airport that his name had been placed on E.C.L. The petitioner was stopped from proceeding abroad. On 14.03.2017, the petitioner submitted a representation to respondent No,l. On 16.03.2017, the petitioner submitted another representation to respondent No,1, seeking the removal of his name from the E.C.L. Having not received any plausible response from respondent No,1, the petitioner filed the instant writ petition seeking the removal of his name from the E.C.L. CONTENTIONS OF THE LEARNED COUNSEL FOR THE PETITIONER:- Mr. Farooq Amjed Mir, A.S.C., learned counsel for the petitioner submitted that on 26.07.2013, the position of the Chairman, C.C.P. fell vacant; that the petitioner, being the senior most Member of the C.C.P., was notified by the Federal Government on 22.08.2013 as the Acting Chairman, C.C.P., in which position he served until 22.12.2014, when a regular Chairperson was appointed; that the petitioner has been accused of appointing seven persons in the C.C.P. during the period when the Federal Government had imposed a ban on appointments; that the petitioner was also accused of hiring premises for opening a regional office for the C.C.P. at Karachi, and purchasing furniture for the said office; that the maltreatment meted out to the petitioner by respondent No,2, caused him to file writ petition No,3867/2016 before this Court; that vide interim order dated 14.12.2016, this Court restrained respondent No,2 from inter alia taking any adverse measures against the petitioner; and that on the recommendations of respondent No,2, respondent No,1 has placed the petitioner's name on E.C.L. It was further submitted that after the aforementioned interim order dated 14.12.2016 was passed by this Court, respondent No,2 should not have asked respondent No,1 to place the petitioner's name on E.C.L; that respondent No,2 in its reply to writ petition No,3867/2016, had pleaded that the petitioner had caused a loss of Rs,10 million to the national exchequer; that in contradiction to its said pleadings, respondent No,2 is now accusing the petitioner of causing a loss of Rs,21 million; that the said contradiction is indicative of mala fides on respondent No,2's part; that even after the issuance of the call-up notices to the petitioner,
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the petitioner has travelled abroad on three occasions; that the petitioner is resolute in defending his reputation and clearing his name from all sorts of allegations being hurled by respondent No,2 against him; that the petitioner shall cooperate in the enquiry/investigations against him, and has no intention of staying abroad in order to impede the enquiry/investigation against him; that the petitioner was not given any opportunity of hearing by respondent No,1 before placing his name on E.C.L.; that the petitioner is a frequent flyer and has to proceed abroad to give lectures and attend conferences; that the petitioner's name could not have been placed on E.C.L. as he is alleged to have caused a loss of Rs,21 Million; that the Hon'ble Supreme Court, in the order passed in the case of the The State v. Hanif Hyder (2016 SCMR 2031) observed that the legislative intent behind the National Accountability Ordinance, 1999, was not that inquiries and investigations be carried out in petty matters involving less than Rs,100 million; that no response was given by respondent No,1 to the petitioner's representations dated 14.03.2017, and 16.03.2017; that since the remedy contemplated under section 3 of the Exit from Pakistan (Control) Ordinance, 1981, is not adequate and efficacious, the petitioner filed the instant writ petition praying for a direction to respondent No,1 to remove his name from E.C.L; and that the placement of the petitioner's name on E.C.L. has violated his fundamental right of movement, which includes foreign travel. Learned counsel for the petitioner prayed for the writ petition to be allowed by directing respondent No,1 to remove the petitioner's name from the E.C.L. CONTENTIONS OF THE LEARNED ASSISTANT ATTORNEY GENERAL:- 10. On the other hand, Chaudhry Abdul Khaliq Thind, learned Assistant A-G. submitted that the petitioner's name had been placed on E.C.L. for a period of one year in accordance with section 2 of the Exit from Pakistan (Control) Ordinance, 1981, on the recommendations of respondent No,2; that the allegations against the petitioner were that he had misused his authority by (i) making appointments in the C.C.P., hiring a building for the regional office for the C.C.P. at Karachi, and purchasing furniture and equipment for the said office, and authorizing foreign visits of his close subordinates at the expense of the C.C.P.; that by misusing his authority, the petitioner had caused a loss of Rs,21 million to the national exchequer; that law neither obligated respondent No,1 to give reasons for placing the petitioner's name on E.C.L., nor to afford an opportunity of a hearing to the petitioner; and that the petitioner could avail the alternative remedy of filing a review petition against the placement of his name on E.C.L. Learned Assistant Attorney-General prayed for the writ petition to be dismissed. CONTENTIONS OF THE LEARNED SPECIAL PROSECUTOR, NATIONAL ACCOUNTABILITY BUREAU (RESPONDENT NO.2):- 11. Mr. Imran Shafique, Advocate, learned Special Prosecutor (NAB) submitted that the writ petition instituted by the petitioner was misconceived and amounted to an abuse of the process of the law; that the writ petition was an effort to hamper the proceedings initiated by respondent No,2 against the petitioner; that the questions agitated in the writ petition were factual in nature, and were the subject matter of an investigation; that the proceedings initiated against the petitioner were strictly in accordance with the law; that there was sufficient incriminating material available against the petitioner; and that since the petitioner was involved in corruption and corrupt practices, he should not be granted any relief by this Court. It was further submitted that after a complaint was filed against the petitioner, alleging misuse of authority and commission of corrupt practices, an inquiry was authorized by the competent authority against the petitioner on 28.09.2015; that since the petitioner is also a Canadian citizen,
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there is an apprehension that he may abscond in order to avoid the pending inquiry/investigation; that the petitioner's name had been placed on E.C.L. on respondent No,2's request dated 25.08.2016; that the law does not prohibit respondent No,2 from taking cognizance of matters where the loss to the national exchequer caused by corruption and corrupt practices is less than Rs,100 million; and that the necessary authorization/approval for investigating the matter pertaining to the corruption and corrupt practices committed by the petitioner had been obtained from the competent authority. It was further submitted that the petitioner, in his capacity as acting Chairman of the C.C.P., had misused his authority by illegally appointing persons despite a ban on fresh appointments imposed by the Federal Government, vide office memorandum dated 20.06.2015; that the C.C.P., on 30.06.2013, had decided to comply with the said direction issued by the Federal Government; that the petitioner was also responsible for sanctioning unnecessary expenditure by hiring a building and procuring furniture and equipment for establishing the C.C.P.'s office at Karachi; that the said expenditure had caused a loss of Rs,10 million to the national exchequer; and that the petitioner had also sanctioned foreign visits of his close subordinates without the approval of the competent authority. Learned Special Prosecutor prayed for the writ petition to be dismissed. REBUTTAL ON BEHALF OF THE PETITIONER:- Learned counsel for the petitioner submitted that there was no allegation of embezzlement against the petitioner; that the ban on recruitment imposed by the Federal Government through office memorandum dated 20.06.2015, did not apply to the C.C.P. which is administratively independent and autonomous; that Section 12 of the 2010 Act mandates that the Federal Government shall use its best efforts to promote, enhance and maintain the independence of the C.C.P.; that section 23 of the said Act, empowers the C.C.P., to appoint such officers, officials, experts, advisors and consultants as it considers necessary; that in view of the said statutory provisions, the ban on recruitments imposed by the Federal Government did not apply to recruitments in the C.C.P.; that the said decision of the C.C.P. dated 05.07.2013, was in derogation of the said provisions of the statute; ' that the petitioner had, during his tenure as Acting Chairman C.C.P. terminated the contracts of certain employees in the C.C.P., who had been employed illegally; that as regards the hiring of an office for the C.C.P. at Karachi, this was not the decision of the petitioner alone, but that of the entire Commission; that Section 13 of the 2010 Act authorized the C.C.P. to establish offices at such other places as it considered necessary; that the decision to establish an office at Karachi, and to procure furniture and equipment for it, was made on the recommendation of a Committee headed by a Member of C.C.P.; that the procurement was for an amount of Rs,2.402 million out of which an amount of Rs,1.779 million had been paid; that as regards sanctioning foreign visits of the employees of C.C.P., the Chairman of the C.C.P. is empowered under Regulation No,1 of Chapter No,5 of the Competitions Commission (Service) Regulations, 2007, to send employees of the C.C.P. abroad at the expense of the C.C.P.; that the instructions of the Cabinet Division regarding foreign visits of employees is applicable only to Government servants, whereas the employees of the C.C.P. are not government servants; and that the C.C.P. from the date of its inception, has not sought permission from the Cabinet Division for sending its employees abroad. We have heard the contentions of the learned counsel for the contesting parties, and have perused the record with their able assistance. The essential facts leading to the filing of the
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instant petition have been set out in sufficient detail in paragraphs 2 to 7 above, and need not be recapitulated. It must be borne in mind that these proceedings are regarding judicial review of respondent No,l's decision to place the petitioner's name on the E.C.L., and not a challenge to the substance of the allegations leveled by respondent No,2 against the petitioner. Therefore, we do not deem it necessary to go into the veracity of the allegations of corruption or misuse of authority leveled by respondent No,2 against the petitioner. What we are concerned with, is whether or not respondent No,l's decision to place the petitioner's name on the E.C.L. is in accordance with the law and procedurally proper. To prevent a man from leaving the country or from entering it is to impose a physical restraint on his person. It is to deprive him of a personal liberty. Freedom to travel, both within and outside the confines of the territory of the State, raises important issues of personal freedom. The right of free movement whether within the country or across its frontiers, either in going out or in coming in, is a personal liberty within the meaning of Article 9 of the Constitution, which says, "No person shall be deprived of life or liberty save in accordance with law." Freedom of movement is said to be the essence of personal liberty. A citizen cannot be deprived of his right to travel abroad except according to the procedure established by law. 'Reference in this regard may be made to the following judgments of the Superior Courts:- In the case of Federation of Pakistan v. General (Retd.) Parvez Musharraf (PLD 2016 SC 5710), it has been held as follows:- "12. ...considering the question of inclusion or retaining the name of respondent No,1 in the ECL, thereby restricting his freedom of movement, we also cannot lose sight of the fact that under Article 15 of the Constitution freedom of movement is one of the fundamental rights guaranteed to every citizen of the Country, which cannot be abridged or denied arbitrarily on mere liking or disliking, without any lawful justification for this purpose. Moreso, when Article 4 of the Constitution further guarantees right to every individual to be dealt with in accordance with law." In the case of Pakistan Muslim League (N) v. Federation of Pakistan through Secretary, Ministry of Interior (PLD 2007 SC 642), it has been held as follows:- "Every citizen has undeniable right vested in him as conferred under Article 15 of the Constitution to go abroad and return back to Pakistan without any hindrance and restraint but it must be kept in view that it is neither absolute nor unqualified as is indicative from the language employed in Article 15 of the Constitution as a specific mention has been made "subject to any reasonable restriction imposed by law in the public interest", meaning thereby that such right is subject to the relevant law which is in existence at relevant time but "an action which is mala fide or colourable is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant considerations is also not action in accordance with law. Therefore, action taken upon no ground at all or without proper application of the mind of an authority would also not qualify as an action in accordance with law and would, therefore, have to be struck down as being taken in an unlawful manner." (Emphasis added) In the case of Riaz Ahmed v. Government of Pakistan (PLD 2014 Islamabad 29), the petitioner had challenged the placement of his name on the E.C.L. The petitioner's name was said to have been placed on the E.C.L. on the recommendations of Inter Services Intelligence, as he was alleged to have been active in terrorist activities against the security forces in Swat during an operation. The petitioner's repeated representations seeking the removal of his name from the
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E.C.L. had remained unattended. It was held by this Court that the right to travel was a fundamental right of every citizen guaranteed under Articles 4, 9 and 15 of the Constitution. It was also held to be a universally recognized right enshrined in Article 12(4) of the Covenant on Civil and Political Rights, adopted by the United Nations General Assembly on 16.12.1966. Furthermore, it was held that no one could be kept in a lurch for an indefinite period, and that the authorities were under an obligation to decide the applications or representations of the general public in a fair and just manner, and within a reasonable time. This Court accepted the petitioner's writ petition and directed the respondents to remove the petitioner's name from the E.C.L., and to return his passport forthwith. (iv) In the case of Wajid Shams-ul-Hassan v. Federation of Pakistan through Secretary, Mi nistry of Interior (PLD 1997 Lahore 617), it has been held as follows:- "14. In view of the above discussion, I have no doubt in my mind that the right of citizen to travel abroad is a fundamental right guaranteed by Articles 2A, 4, 9, 15 and 25 of the Constitution of Islamic Republic of Pakistan, 1973. Abridgment of this fundamental right by the State through the legislative or an executive measure has to be tested on the touchstone of the Constitutional provisions. The life, liberty or property of a citizen cannot be taken away or adversely affected except in accordance with law. However, the "law", I mean, a valid law which does not come in conflict with any of the provisions of the Constitution and should not be a law which is ex facie discriminatory. Section 2 of the Exit from Pakistan (Control) Ordinance, 1981, does not provide any guidelines or reasonable classification for taking the action against a person prohibiting him from travelling abroad. Even the valuable rights of citizens of being heard and of knowing the reasons for such an action have been denied. The provisions of the law are therefore, ex facie discriminatory as also capable of being administered in a discriminatory manner. If no reasons are assigned to an aggrieved person the remedy of review under section 3 of the Ordinance by making a representation becomes redundant. A citizen would not be in a position to make any effective representation in the absence of any reason or a speaking order. Prima facie, it may be difficult to sustain the validity of the Ordinance on the touchstone of Articles 2A, 4, 9 and 25 of the Constitution of Islamic Republic of Pakistan, 1973. Under this law, there is a scope for the executive to adopt a policy of pick and choose in any case without there being any justifiable grounds. I, however, refrain from expressing any final opinion in this regard for the reason that the vires of the Ordinance have not been specifically challenged in the writ petition. The same would be examined in some other appropriate case where a specific challenge to the validity of the said Ordinance is made. However, in the present case, the impugned order dated 14-11- 1996 does not contain any reasons In support thereof. It is an arbitrary and a mala fide order. The same is a nullity in the eyes of the Constitution and the law. In the absence of any valid reasons, the validity of the impugned order dated 14-11- 1996 cannot be adjudged and the same has, therefore, to be struck down as without lawful authority. Similar is the position of impugned order dated 19-1-1997 whereby the representation of the petitioner was rejected without informing him of any grounds or reasons for its rejection." (Emphasis added) The learned author Judge of the said report rose to grace the Hon'ble Supreme Court. Therefore, the said judgment is to be revered and respected. The basic principles enunciated in the afore-referred cases describe a common dictum that freedom to travel abroad is a fundamental protection or right available to a person under Articles 4, 9 and 15 of the Constitution. The grant of such right is certainly subject to restrictions placed by due process of law. Exit from Pakistan (Control) Ordinance, 1981, sets out the process of law by which a restriction could be placed on a person's right to travel abroad. It may also be mentioned that articulation of the freedom of movement beyond the boarders of a State has been made in Clause 42 of the Magna Carta Libertatum (the Great Charter of the Liberties), commonly known as Magna Carta. The said Clause provided:- "(42) In future it shall be lawful for any man to leave and return to our kingdom unharmed and without fear, by land or water, preserving his allegiance to us, except in time of war, for some short period, for the common benefit of the realm. People
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that have been imprisoned or outlawed in accordance with the law of the land, people from a country that is at war with us, and merchants - who shall be dealt with as stated above - are excepted from this provision." 20. In the United States, the Fifth Amendment guarantees that no person shall be "deprived of life, liberty or property without due process of law". There can be no doubt that in the United States the right of exit and of entry is regarded as a personal liberty. It has consistently been held that the right to travel or exit the country was a personal right included within the word, "liberty" as used in the Fifth Amendment, and that a citizen could not be deprived such a right without due process of law. Reference in this regard may made to the judgment of the U.S. Supreme Court in the case of Kent v. Dulles, 357 U.S. 116 (1958). The Universal Declaration of Human Rights which was adopted by the United Nations General Assembly on 10.12.1948 and for which Pakistan voted, provides for freedom of movement within each State and also across its frontiers in either direction. Article 3 of the said Declaration is based on the general principle that, "everyone has the right to life, liberty and security of person." Article 13 deals with freedom of movement, and reads thus:- "Article 13(1) Everyone has the right to freedom of movement and residence within the borders of each State. (2) Everyone has the right to leave any country including his own and to return to his country." Article 13 of the Universal Declaration of Human Rights is akin to Articles 9 and 15 of our Constitution. Since there is no inconsistency between Article 13 of the Universal Declaration of Human Rights and the provisions of our Constitution, the former can be cited and relied upon before Courts in Pakistan. In the case of Al-Jehad Trust v. Federation of Pakistan (1999 SCMR 1379), the issue before the Supreme Court was whether the people of the Northern Areas of Pakistan (now Gilgit-Baltistan) could enjoy fundamental rights and be governed through their chosen representatives and to have access to justice through an independent judiciary, inter alia, for enforcement of their fundamental rights. Paragraphs 15 and 16 of the said report are reproduced here in below : - "15. We may also observe that even under the Universal Declaration of Human Rights, to which Pakistan is a signatory, human beings have…
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