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Petitioner: WAJID SHAMASU LHASSAN VS Respondent: FEDERATION OF PAKISTAN through Secretary, JUDGMENT
Court Name: Lahore High Court Judge(s): Faqir Muhammad Khokhar Title:WAJID SHAMASU LHASSAN vs FEDERATION OF PAKISTAN through Secretary,
JUDGMENT
Reported As: PLD 1997 Lahore 617 Result: Petition accepted Judgment JUDGMENT ' The petitioner was appointed Pakistan's High Commissioner to the United Kingdom in 1994 on contract basis by the Government of Pakistan. His services were terminated by the Federal Government on 8-11-1996. The name of the petitioner was placed on the Exit Control List vide Order No,12/59/96- Pass(Int.)I, dated 14-11-1996 passed by the Interior Division, Government of Pakistan, Islamabad. The petitioner filed Writ Petition No,1914 of 1996 to call in question the validity of the impugned order dated 14-11-1996. The writ petition filed by the petitioner was disposed of on 14-12- 1996 by a learned Judge of this Court with the direction to the petitioner to avail the remedy of review as provided for by section 3 of the Exit from Pakistan (Control) Ordinance, 1981, by making a representation to the Federal Government. The petitioner filed a representation of review on 31-12- 1996 before the Secretary, Ministry of Interior, Government of Pakistan, Islamabad but the same was rejected by the Interior Division vide impugned order dated 19-1-1997. The petitioner has now filed the present writ petition against placing of his name on the Exit Control List. 2. The learned counsel for the petitioner has contended that the actions of the Government placing the name of the petitioner on the Exit Control List was mala fide and violative of the fundamental rights of the petitioner. It is further argued that no reasons whatsoever have been assigned by the respondent while taking the impugned action. The same was also in disregard of the order dated 14-12-1996 passed by this Court in Writ Petition No,1914 of 1996. The respondent was directed by this Court to justify the order while dealing with the representation of the petitioner so that this Court would be in a position to appreciate whether the action was taken in accordance with the provisions of the Exit from Pakistan (Control) Ordinance, 1981 or not. It was further argued that the
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petitioner was not afforded any fair and reasonable opportunity of hearing at any stage in the matter of prohibiting him from proceeding abroad which action on the part of the Government was violative of the principles of natural justice. He also argued that the provisions of subsection (2) of section 3 of the Ordinance were also violated as the representation of the petitioner was rejected without giving an opportunity of being heard. He also attacked the validity of the provisions of the said Ordinance being ultra vires the Constitution but did not advance any arguments in this regard nor any such plea was taken in the writ petition. 3. The learned Standing Counsel appearing for the respondent has opposed the writ petition. He has argued that no reasons are required to be recorded or assigned nor there is any such requirement spelt out by sections 2 and 3 of the Exit from Pakistan (Control) Ordinance, 1981. He further submitted that the petitioner was not entitled to the opportunity of hearing at any stage of the proceedings under the Ordinance which was a valid piece of legislation. He has further submitted that a case F.I.R. No,13/96 was registered on 26-11-1996 at Police Station, F.I.A., Karachi, wherein the petitioner was accused of embezzlement and misappropriation of public money while holding the office of the High Commissioner to United Kingdom. He, however, admitted that the Sindh High Court has already granted bail to the petitioner on 21-12-1996 in the criminal case. 4. I have considered the arguments raised and perused the relevant provisions of the Constitution and the law. It would be advantageous at the outset to survey the relevant provisions of the Constitution as well as Ordinance No, XLVI of 1981 which read thus:-- "Article 2A.--The principles and provisions set out in the Objectives Resolution reproduced in the Annex. Are hereby made substantive part of the Constitution and shall have effect accordingly. The Objectives Resolution ' Whereas sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the State of Pakistan through its people for being exercised within the limits prescribed by Him is a sacred trust; ' Wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed; ' Wherein shall be guaranteed fundamental rights including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality. ' Article 4.--(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan. (2) In particular-- (a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. ' Article 9.--No person shall be deprived of life or liberty save in accordance with law. ' Article 15.--Every citizen shall have the right to remain in, and, subject to any reasonable restriction imposed by law in the public interest, enter and move freely throughout Pakistan and to reside and settle in any part thereof. ' Article 25.--(1) All citizens are equal before law and are entitled to equal protection of law. Sections 2 and 3 of the Ordinance 2. Power to prohibit exit from Pakistan.--(1) The Federal Government may, by order, prohibit any person or class of persons from proceeding from Pakistan to a destination outside Pakistan, notwithstanding the fact that such person is in possession of valid travel documents. (2) Before making an order under subsection (1), it shall not be necessary to afford an opportunity of showing cause against the order.
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(3)If, while making an order under subsection (1) it appears to the Federal Government that it will not be in the public interest to specify the grounds on which the order is proposed to be made it shall not be necessary for the Federal Government to specify such grounds. 3. Review.--(1) Any person aggrieved by an order of the Federal Government under subsection (1) of section 2 may, within fifteen days of the making of the order, make a representation to the Federal Government for a review of the order, setting out in the representation the grounds on which he seeks the review. (2) The Federal Government may, after giving the person making a representation an opportunity of being heard, make such order as it may deem fit. (3) Subject to the order of the Federal Government in review, an order under subsection (1) of section 2 shall be final and shall not be called in question before any Court or other authority." 5. The question of the right of locomotion and to travel -abroad has been a matter of discussion before the superior Courts of this country as also of foreign jurisdiction in a number of cases. In the case of Syed Abu? A'ala Maududi v. The State Bank of Pakistan and another PLD 1969 Lahore 908(D.B.), late Muhammad Akram, J. Of this Court took the view by interpreting Article 6, Fundamental Right No,1 of the 1962 Constitution that the words "personal liberty" of individual included enjoyment of an undeniable right vested 'in him to go abroad for travel and to return to his country and that freedom of locomotion was a part of liberty of people. However, the other learned Judge Muhammad Gut. J. Took a contrary view in the judgment. Subsequently in the case of Syed Sharifuddin Pirzada v. Federation of Pakistan and others PLD 1973 Karachi 132, the majority judgment of the Full Bench took a restricted view of the word "liberty" and held that it did not include the right to travel abroad and the restrictions. Under Rule 31 of the Defence of Pakistan Rules, 1971, prohibiting the petitioner from proceeding abroad were upheld. Fakhruddin G. Ebrahim, J. In his dissenting judgment was of the opinion that the impugned order was not a valid order in the eye of law and that the expression "liberty" occurring in the Constitution was to be given its widest connotation. In the case of Ch. Zahur 11 alai v. Secretary to Government of Pakistan, Ministry of Home and Kashmir Affairs, Rawalpindi PLD 1975 Lahore 499, the provisions of Rule 31 of the Defence of Pakistan Rules, 1971 which were similar to the present provisions of Ordinance, 1981, were interpreted by this Court. It was held that the order of the Government restricting travel of a person abroad not supported by reasons was illegal and that the order banning travel had to be relatable to object of law under which it had been passed. It was also observed that it was a duty cast upon the superior Courts to review the actions of the public functionaries exercising powers in derogation of the liberty of a person and that travelling abroad was a part of a personal liberty of a citizen which could not be curtailed without assigning any valid reasons or affording a reasonable opportunity of hearing. The word "law", it was held, as used in Article 4 of our Constitution did not only mean the letter of the law but it also carried with it the necessary implication as to how that law was to be implemented. It was, therefore, held that the duty did lie on a public functionary exercising the public to Act with reasonableness and fairness. The majority view earlier taken by the Sindh High Court in the case of Syed Sharifuddin Pirzada (supra) was dissented from. In Habib Jalib v. State Bank of Pakistan PLD 1980 Lahore 561, a learned Single Judge of this Court followed the view taken by late Muhammad Akram, J. In the case of Syed Abul A' ala Maududi (supra) and dissented from the view taken by Muhammad Gal, J. As also by the Sindh High Court in Syed Sharifuddin Pirzada (supra). It was held that the right to travel abroad was a part of liberty as guaranteed by the Constitution and that the State functionaries were expected to record reasons for the proposed action of non-issuance of a passport so as to enable the Court to examine the validity of the reasons. Yet in a latter case of M. Younis Malik v. The State Bank of Pakistan PLD 1981 Lahore 181, this Court held that the right to exit was a personal right included within the word "liberty" and the citizens had the right to travel abroad and to return to one's home country.
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Violation of such a right by the State also offesided the equality provisions of the Constitution. The learned Judge was of the view that the movements of a person could be hindered or prevented only on the surest grounds. Otherwise, the same would be violative of Articles 9 and 25 of the Constitution. This Court also held that injunction against deprivation of liberty in Article 9 of the Constitution gave a wider concept and unreasonable or arbitrary curtailment of liberty without any valid reasons was a matter for judicial review by the superior Courts. In the view of the Court, the mere involvement in a criminal case in which the ,bail had been granted to a citizen could not be made a ground for refusing a citizen insurance of a passport. The learned Judge late Gul Muhammad Khan, J. Held that executive action based on law violating fundamental rights could be struck down despite the fact of fundamental rights being not enforceable before the superior Courts for the time being. The view taken by late Muhammad Akram, J. In the case of Syed Abul A'ala Maududi (supra) was followed. In the case of Mumtaz Ali Bhutto v. The Government of Pakistan through Secretary, Ministry of Interior PLD 1981 Karachi 98, it was held that before a person was finally refused the grant of a passport on certain grounds based on materials, in the possession of the relevant authorities, the affected person had to be given an opportunity of hearing. It was also held that the public power had to be exercised fairly and reasonably in consonance with the objects of laws under which it was/ granted and not for extraneous purposes which would tantamount to a fraud on the Statute. 6. The matter of right of a citizen to go abroad was exhaustively considered by the Hon'ble Supreme Court of Pakistan in the case of Government of Pakistan through Secretary, Ministry of Interior and another v. Dada Amir Haider Khan PLD 1987 SC 504 in the context of issuance of a passport. Their Lordships held as under:-- "The learned Judges in the High Court, while allowing the writ petition, relied on the provisions of sub-Article 2(a) of Article 4, according to which 'no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law'. As there is not much difference between Article 9 and Article 4(2)(a) and the former appears merely to be a deduction from the latter, Article 9, therefore, does not take the matter any further. However, Article 15. Which confers upon every citizen, inter alia, the right to enter and move freely throughout Pakistan, is of greater relevance. Article 15 guarantees to every citizen the right to remain in, enter and move freely throughout Pakistan. But his right to, enter the country if he is leaving it or has gone abroad and his right to step out and step in the country, are subject to reasonable restrictions imposed by law in the public interest. By reading the provisions of Articles 4, 9 and 15, it is manifest that every citizen has the liberty to go abroad and to enter Pakistan unless he is precluded from doing so under some law made in the public interest. The Passports Act, 1974 is one such law. ' It is now well-established law that a discretion vested in a public authority must be exercised fairly, reasonably and in good faith. ' In the present case, no reasons whatever were given by the appellant No,2 to indicate why the respondent could not be issued a passport. Such an order is not a proper order as without disclosing the reasons why the discretion had been exercised against the respondent, it is not possible to say whether the discretion exercised has been exercised properly or arbitrarily. ' Before the High Court, no doubt, the reason for non-issuance of the passport was given, namely, that the respondent was an old political worker having 'Communist thoughts'. This was the sole reason indicated. ' We do not think this reazoi was a reasonable ground on which a citizen's liberty to travel abroad could be curtailed. Undoubtedly, to travel could be barred if it was shown that the respondent was going abroad to meet the enemies of the country and his foreign visit could endanger the security of the State or was against the public interest.
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' Moreover, a citizen's right to travel abroad is an important aspect of the citizen's liberty and is closely related to the rights of free speech and association. As nations in the world become politically and commercially more dependent upon one another and foreign policy decisions have come to have greater impact upon the lives of the citizens, the right to travel has become correspondingly mare important. Through travel, by private citizens as well as by journalist and Governmental officials, information necessary to the making of informed decisions can be obtained. And, under our Constitutional system, the ultimate responsibility for the making of informed decisions rests in the hands of the people. Thus, the reason given, even before the Court was not a proper reason." ' In taking the view, the Hon'ble Supreme Court of Pakistan affirmed the statement of law made in Ch. Zahur Ilahi's case (supra) wherein the assignment of reasons and an opportunity of hearing before the impugned order was insisted upon. 7. The Indian High Courts have also considered the right to travel abroad as a part of personal liberty included in Article 21 of the Constitution of India (similar to Article 9 of the Constitution of Pakistan) which also guarantees the personal liberty as a fundamental right. Refers the cases of F. Manjooran v. Government of India AIR 1966 Ker. 20(F.B.); Choithram Verhomal Jethwani v. A.G. Kazi AIR 1966 Born. 54(S.B.) uphold by a Divisioin Bench in the case of A.G. Kazi and others v, C.V. Jethwani AIR 1967 Bom.235; Dr.S.S. Sadashive Rao v. Union of India (1965) 2 MYS LJ 605 (D.B.). 8. The Indian Supreme Court in the case of Satwant Singh Sawhney v. Assistant Passport Officer (AIR 1967 SC 1836)(F.B.) held that the expression "personal liberty" in Article 21 takes in the right of locomotion and to travel abroad and that under Article 21 no person could be deprived of his right to travel abroad except according to procedure established by law. The following statement of law appears in the judgment:-- "The doctrine of equality before the law is necessary corollary to the high concept of the rule of law accepted by the Constitution of India. One of the aspects of rule of law is that every executive action, if it is to operate to the prejudice of any person, must be supported by some legislative authority. Secondly, such a law would be void if it discriminates or enables an authority to discriminate between the persons without just classification. What a Legislature could not do, the executive could not obviously do. An arbitrary prevention of a person from travelling abroad will certainly affect him prejudicially. A person may like to go abroad for many reasons. He may like to see the world, to study abroad, to undergo medical treatment to collaborate in scientific research, to develop his mental horison in different fields and such others. An executive arbitrariness can prevent one from doing so and permit another to travel merely for pleasure. While in the case of enacted law one knows where he stands, in the case of unchanelled arbitrary discretion, the discrimination is writ large on the face of it. Such a discretion patently violates the doctrine of persons rests solely on the authority selection of the executive. The argument that the said discretionary power of the State is a political or diplomatic one does not make it anytheless an executive power." ' In the latter case of Smt. Maneka Gandhi v. Union of India and another AIR 1978 SC 597, the Indian Supreme Court held as under:- "It is not a valid argument to say that the expression 'personal liberty' in Article 21 must be so interpreted as to avoid overlapping between that Article and Article 19(1). The expression 'personal liberty' in Article 21 of widest amplitude and it covers a variety of rights 'which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19. ' It will be seen at once from the language of Article 21 that the protection it secures is a limited one. It safeguards the right to go abroad against executive interference which is not supported by law; and law have means 'enacted law' and 'state law'. Thus, no person can be deprived on his right to
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go abroad unless there is a law made by the State prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure. Obviously, the procedure cannot be arbitrary, unfair or unreasonable." ' If a My depriving a person of 'Personal Liberty' and prescribing a procedure for that purpose within the meaning of Article 21 has to stand the test of one or more of the fundamental rights conferred by Article 19 which may be applicable in a given situation, ex-hypothesis it must also be liable to be tested with reference to Article 14. ' The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omni presence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be 'right, just, fair' and not arbitrary, fanciful or oppressive; otherwise, it should be no procedure at all and the requirement of Article 21 would not be satisfied. ' Although there are no positive words in the Statute requiring that the party shall be heard yet the justice of the common law will apply the omission of the Legislature. The principle of audi alteram partem, which. Mandates that no one shall be condemned unheard, is part of the rules of natural justice. ' The law must not be taken to be well-established that even in an administrative proceeding which involves civil consequences, the doctrine of natural justice must be held to be applicable. ' The rules of natural justice would, in the circumstances, be applicable in the exercise of the power of impounding a passport. The same result would follow even if the power to impound a passport were regarded as administrative in character, because it seriously interferes with the Constitutional right of the holders of the passport to go abroad and entails adverse civil consequences. ' It would not be right to conclude that the audi alterem partam rule is excluded merely because the power to impound a passport might be frustrated, if prior notice and hearing were to be given to the person concerned before impounding his passport." 9 In Bauar v. Acheson (1952) 106 U.S. 445, the United States Supreme Court held that the right to travel abroad was a right guaranteed by the Constitution and could only be restricted in accordance with fundamental principles of due process of law laid down in the Fifth Amendment. The rule laid down was that the discretion of the executive in such matters, although political, must, be exercised with due regard to the Constitutional right of the citizens and that the freedom to travel abroad like other principles guaranteed by the Constitution is subject to reasonable regulation and control in the interest of the public welfare. The requirement of due process and equal protection of laws in the exercise of their control was emphasised. In another case of Apthekar v. Secretary of State (1964) 378 US 500, the United States Supreme Court gave the opinion that the provisions of Subversive Activities Control Act, 1950 prohibiting the members of any banned organization to travel abroad, to apply for and attempt to use passport were unconstitutional, in that, it restricted the right to travel broadly and discriminately. 10. In the case of A. Ghani v. Jones (1969) 3 All England Reports 1700 the reason advanced by the U.K. Government was that the Police wanted to prevent the petitioner from leaving the country pending investigation in a murder case, the Court laid down the following law:-- "I cannot help feeling that the real reason why the passports have not been returned is because the officers wish to prevent the plaintiffs from leaving this country pending police enquiries. That is not a legitimate ground for holding them. Either they have grounds for arresting them, or they have not. If they have not, the plaintiffs should be allowed to leave even if it means they are fleeing from the reach of justice. As man's liberty of movement is regarded so highly by the law of England that it is not to be hindered or prevented except on the surest grounds. ' It must not be taken away on a suspicion which is not grave enough to warrant his arrest."
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11. The Universal Declaration of Human Rights, 1948, in its Article 13(2) also declares that everyone has the right to leave any country, including his own, and to return to his country. Similar provisions are found in Article 12(2) of the International Covenant on Civil and Political Rights, 1966, whereby it is declared,-- (1) Everyone lawfully within the territory of a State shall, within that territory, has the right to liberty of movement and freedom to choose his residence. (2) Everyone shall be free to leave any country, including his own. (3) The abovementioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (order public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognised in the present Covenant. (4) No one shall be arbitrarily deprived of the right to enter his own country." ' The rights recognized under these declarations are in conformity with the Human Rights guaranteed to our citizens by the Constitution and the mere non-ratification of Pakistan of these declarations would not undermine the importance of these internationally recognized valuable rights to travel abroad. 12. The right to travel is one of the most valued and cherished fundamental human rights in all civilised societies perhaps next only in importance to the rights to life and personal liberty. Denial…
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