1989 PLP 79 (CLC)

4. The respondent filed counter‑affidavit wnerein it was contended that neither the impugned order nor the Ordinance is ultra vires of any provision of the Constitution or in any manner offends against any of the fundamental rights. It is denied that the impugned order has been made mala fide. It is further contended that the impugned order has been passed in accordance with lacy and that no notice, hearing or grounds are required by law to be given. It is the case, as set out in the counter‑affidavit, that the petitioner is the Secretary General of Sind Baloch Pushtoon Front. The declaration and activities of this Front are against the ideology and Constitution of Pakistan and are highly prejudicial. It is submitted that experienced and qualified doctors /surgeons are available in the country to properly look after the health of the petitioner. It is further submitted that the petitioner filed review petition as provided in the Ordinance. It is pertinent to note that petitioner had appeared before the Secretary, Ministry of interior who did not diclose the grounds of passing impugned order but was satisfied with the medical reports and undertook to pass order on the review petition. It seems that no orders were passed on the review petition.

5. In Constitutional Petition No.1245 of 1986, the facts are that in July 1979 the petitioner suffered third and most serious heart attack as a consequence of which he was advised by heart specialists to go abroad for appropriate treatment. The petitioner wrote to the respondent for permission to go abroad. As he did not receive any reply he filed Constitutional Petition in this Court against the ban placed by the Government on his exit from the country. This Court directed him to apply to the Director of Immigration who must give his decision within 30 days. The petitioner complied with the direction but there was no response from the Director of Immigration whereupon the petitioner filed second petition in early 1981. It is the case of the petitioner that during the pendency of the petition the respondent issued orders for the grant of a new passport to the petitioner and allowed him to go abroad for treatment. It is the case of the petitioner that in August 1981 the petitioner went to U.S.A. where he had a medical examination including an Angiogram and as a consequence of this he was prescribed treatment and asked to return again in' six months for medical examination. In July 1982 the petitioner was allowed to go to England where' 'he had a fresh medical examination at the end of which he was advised to remain on medication and return again after six to eight months. It is the case of the petitioner that in November,. 1983 he was placed under house arrest and during this period he experienced symptoms which were alarming. His health deteriorated in February 1983 and he was admitted in the Institute of Cardio Vascular Diceases, Karachi and he proceeded on 1‑3‑1983. The petitioner went to U.S.A, where he was admitted in VCLA Hospital, where he under went a quadruple coronary by‑pass surgery. He returned to Pakistan in July 1983. It is the case of the petitioner that he was arrested on 10‑8‑1983 and placed in detention in Karachi and in the. first week of February, 1984 he was shifted from Central Jail to Borstal Jail, Landhi. His health deteriorated and in April 1984 he was shifted to hospital. He proceeded to London on 4‑11‑1984 where he was admitted in the London Clinic where he remained under medical treatment until his return to Pakistan on 7th February, 1986. It‑is the further case of the petitioner that his passport expired in August 1986 and he applied for renewal.

6. On 3rd November, 1986 the petitioner received a letter dated 30th October, 1986 from the Deputy Secretary intimating him that he shall not proceed from Pakistan to any destination outside Pakistan. This action was taken in exercise of the powers conferred by subsections (1) and'(2) of the Exit from Pakistan (Control) Ordinance, 1981 (hereinafter referred to as the Ordinance). The petitioner thereupon filed the present petition challenging the order of the Government in prohibiting him from proceeding to any destination outside Pakistan. The order inter alia is impugned on the ground that the petitioner was neither heard nor have any reasons or grounds for the order been conveyed to him. The principal challenge set out in the petition against the legality of the order of the respondent was based mainly on the ground that the order as well as. the Ordinance are ultra vires the fundamental rights and the order is against .the principles of natural justice and mala fide in law.

7. Mr. Abdul Qadeer Siddiqui, Section officer of the respondent filed counter‑affidavit. The order was passed by the respondent after proper application of the mind in consultation with the Government of Sind and on the basis of available material. The respondent contended that neither the impugned order nor the Ordinance is ultra vires any provision of the Constitution or in any manner offend any of the fundamental rights. The respondent also contended that the petitioner is an office‑bearer of the Sind Baloch Pushtoon Front. The declaration and activities of this Front are against the ideology and Constitution of Pakistan and pre-judicial. The petitioner has not filed any review petition as provided by the Ordinance.

8. Before we examine the rival arguments urged on behalf of the parties in regard to the various questions arising in these petitions, it would be advantageous to reproduce the relevant provisions of the Ordinance. The position which obtained prior to the coming into force of the Passports Act,1974 was issuance of passport under the Passports Act (XXXIV of 1920) and Passport Rules, 1955 and the issue of 'P' Form for leaving the shores of Pakistan and going abroad. A Division Bench of Lahore High Court in the case of Syed Abul ala Madoodi v. The State Bank of Pakistan and another PLD 1969 Lah. 908 held that the expression 'deprived of life or liberty in Fundamental Right No.l of 1962 (which is in pari materia to Fundamental Right No.9) takes in the right of locomotion and travel abroad and under Article 1 of 1962 or Article 9 of our Constitution no person can be deprived of his right to go abroad except according to the procedure established by law and since no law had been made by the Federal Government regulating or prohibiting the exercise of such right, the order dated 18‑10‑1967 was passed in violation of Fundamental Right'.

9. The Passports Act, 1974 was enacted on 11th March, 1974. The position which obtained prior to the coming in force of this Act was that there was no law regulating the issue of passports for leaving the shores of Pakistan and going abroad. The issue of passports was entirely within the discretion of the Government. This Act, as its preamble shows, was enacted to regulate departure from and entry into Pakistan and visit to foreign countries of the citizens of Pakistan. This Ordinance was promulgated on 31st December, 1981 and as the preamble shows, was to provide for the control of exit of certain persons from Pakistan. Subsection (1) of Section 2 provides that the Federal Government, may by order, prohibit any person or class of persons from proceeding from Pakistan to any destination outside Pakistan, notwithstanding the fact that such person is in possession of valid travel documents. Subsection (2) thereof provides that before making an order under 'subsection (1), it shall not be necessary to afford, an opportunity of showing cause against the order.

10. Subsection (3) provides that 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.

11. Section 3 of the Ordinance provides that 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. '

12. Mr. Nasim Farooqi, the learned counsel for the petitioners has not challenged the legality of the Ordinance and has confined his arguments only on the legality of the impugned order.

13. It is pertinent to note that the Federal Government had not relied upon any ground for making the impugned orders. Subsection lays down that if it appears to 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. It was by virtue of the provisions contained in Subsection (2) that the Federal Government declined to disclose the reasons in the impugned orders. The Federal Government has taken up the stand that the impugned orders were passed in the public interest. The Federal Government did disclose the reasons in counter‑affidavits. The reasons disclosed in the counter‑affidavit are that the petitioners are General Secretary/ Members of Sind Baloch Pushtoon Front. The declarations and activities of this Front are against the ideology and Constitution of Pakistan. The Federal Government has not adverted to this aspect of the matter.

14. Mr. Nasim Farooqui, learned counsel for the petitioners contended that the impugned orders were passed without affording opportunity to the petitioners.

15. On the other hand Mr. Qader Sayeed the learned Standing Counsel submitted that subsection (2) of Section 2 lays down that before making an order under subsection (1), it shall not be necessary to afford opportunity of showing cause against the orders. His submission is that the Ordinance specifically excluded the rule of audi alteram partem. We agree with the learned Standing Counsel. We are of the view that having regard to the nature of the action involved in prohibiting the persons from proceeding to any destination outside Pakistan, the audi alteram partem must be held excluded, because if notice were to be given to the persons who are in possession A of valid travel documents and reasonable opportunity afforded to them to show cause why they may not be prohibited from proceeding from Pakistan to any destination outside Pakistan; they might immediately, on the strength of valid travel documents, make good their exit from Pakistan and the object of prohibiting them from proceeding would be frustrated.

16. The petitioners approached for seeking 'No objection' or for allowing them permission for proceeding abroad for medical treatment. The respondent stated in the counter‑affidavit that experienced and qualified doctors/ surgeons are available in the country to look after the health of the petitioners. The petitioner (in Constitutional Petition No.D‑1227/1987) placed before us a copy of letter dated 31‑5‑1987 of Dr. Professor M.A. Najib, Executive Director of Institute of Cardio Vascular Disceases addressed to the Superintendent of Central Prison, Karachi wherein he recommended that the petitioner may proceed abroad for treatment. The petitioner in Constitutional Petition No.D‑1245/1987 has also placed before us a copy of the recommendation of Medical Board constituted by the Secretary to the Government of Sind wherein they recommended that 'in view of the symptomotology and a positive ETT, the members of the board are of the opinion that he should be further investigated by coronary angiography with a view to subsequent surgical treatment as detected by such investigations preferably abroad'.

17. The contention of the learned counsel for the petitioners is that in the absence of the ‑grounds, the petitioners could not make representation and there is disobedience of the provisions of the Ordinance. One of the primary objects of communicating the grounds to the petitioners is to enable them to make effective representation against their prohibition from proceeding abroad and it is difficult to see how they can make an effective representation. The learned Standing Counsel submitted that the Federal Government would provide them opportunity. In the absence of the grounds, the petitioners could not make effective representation. Thus the so‑called opportunity of being heard by the Federal Government, is not reasonable and amounts to a negation of the right conferred on them under section 3 of the Ordinance. We are of the view that the opportunity to be given must be real and not illusory.

18. The other aspect of the case is that section 3 lays down that any aggrieved person 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. The Ordinance provides that the person aggrieved' may make representation. If any obligation is placed by this Ordinance, it is upon the respondent which should furnish the grounds of prohibiting him as would enable him to make an effective representation to the Federal Government against the making of the order.

20. The question which remains to be considered is whether the impugned orders are within the authority conferred by section 2(3) of the Ordinance, the impugned orders are plainly, on the face of them, purported to be made in public interest, and therefore, their validity must be judged on that footing. A bare reading of provisions of subsection (3) would show that it is left to the Federal Government to determine whether it is necessary to prohibit the petitioners from proceeding to any destination outside Pakistan in the public. interest. But these orders made by the Federal Government are subject to) judicial review on the ground that the orders are extraneous or theyJ1C have no relevance to the public interest. It was not disputed by the learned Standing Counsel that in view of Subsection (3) read with section 3 that except in case of public interest, the Federal Government is bound to disclose the grounds for making orders prohibiting the persons from proceeding abroad and in the present cases, the Federal Government did not assign any reason in the orders or in other words the orders are absolutely silent. But in the counter‑affidavit the Federal Government disclosed the grounds. These grounds were that, according to the Federal Government, 'the petitioners are Secretary General/Office‑bearer of Sind Baloch Pushtoon Front. The declaration and activities of this Front are against the ideology and Constitution of Pakistan and are highly prejudicial. The declaration inter alia provides that the country should consist of four constituent units through voluntary participation and must form autonomous and sovereign confederation which is contrary to the real concept and Constitution of Pakistan. Since the petitioners were likely to propagate their anti‑Pakistan ideas abroad, their exit from Pakistan was banned. There is nothing on the record placed before us in respect of which privilege was claimed, to indicate that the competent Authority has addressed to itself on the question of non‑disclosure of the grounds in public interest.

21. Mr. Naseem Farooqui, the learned counsel for the petitioners relied upon the judgments in the cases of Syed Abul A'ala Moudoodi v. The State Bank of Pakistan and another PLD 1969 Lah. 908 and Syed Sharifuddin Pirzada v. Federation of Pakistan and another PLD 1973 Kar. 132 in, support of his contention that the expression 'liberty' occurring in fundamental Right No.9 of the Constitution should be given a wide meaning so as to include freedom to go abroad subject, of course, to law.

22. On the other hand Mr. Qader H. Sayeed, the learned Standing Counsel contended that the expression 'liberty' should not be given such a wider meaning inasmuch as in the Chapter dealing with the Fundamental Rights, the right that has been guaranteed is freedom of movement in the country subject to any reasonable restrictions imposed by law. In .our opinion the right guaranteed thereunder can be restricted by law, but such law will be open to challenge if it impose ‑unreasonable restrictions. We are of the opinion that while Article 9 is concerned which is the requirement that should be a law, in these cases a law to prevent a person from leaving Pakistan.

23. The learned counsel placed reliance on certain decisions of the United States Supreme Court. The' point of .decision was the decision in Rockwell Kent and Watter Breeh v. John Foster Bulles 1958 357 U.S. 116: 2 Law Ld 2nd 1204. In this case two applications for passports were refused by the Secretary of the State. The Director of the Passports office informed that issuance of passport was precluded by Article 51.135 of. the Regulations promulgated by the Secretary of State on two grounds: that he is Communist and that he 'had a consistent and prolonged adherence to the Communist Party Line'. The Supreme Court laid down that the right to travel is a part of the 'liberty' of which a citizen cannot be deprived without the due process of law of the fifth amendment. A citizen's right of exit can be regulated only pursuant to the law making function of the Congress; and if that power is delegated, the standard must be adequate to pass scrutiny by the accepted tests'. It was further‑held that the denial of passport by the Secretary of State was invalid because the Congress had not, under the Passport Act, authorised the Secretary to refuse passport on. the ground of association with Communist party and refused to file an affidavit to that application and such legislation was necessary before the Secretary of State could refuse passport on these grounds.

24. The second decision was Herbert Aptheker v. Secretary of State 1964 378 U.S. 500; 12 Led. 2d

992. The question which arose for determination in this case related to the Constitutional validity of section 6 of the Subversive Activities Control Act of 1950. This section prohibited the use of passports by communists following a final registration order by the Subversive Activities Control Board under section 7 and following the mandate of this section, the State Department revoked the existing passports of appellants. After exhausting all administrative remedies the appellants sued for declaration and injunction before the District Court which upheld the validity of the section. On appeal, the Supreme Court reversed the judgment by a majority of six against three and held the section to be invalid. The Supreme Court noted first that the right to travel abroad is an important aspect of the citizen's liberty guaranteed by the due process. Clause of the fifth amendment and sect-ion 6 restricts that right and then proceeded to apply the strict standard of judicial review which it had till then applied in any case involving the so‑called preferred freedoms of the first amendment. The Supreme Court held that section 6 of the Exit Control Act too broadly and indiscriminately restricts the right to travel and thereby abridges the liberty: guaranteed by the fifth amendment since it omitted any 'requirement that the individual should have knowledge of the organisational purpose to establish a communist totalitarian distatorship and it made no attempt to relate the restriction on travel to the individual's. purpose of the trip or .to the security sensivity of the area to be visited. 25. . The last case Levis Zemel v. Dean Rusk, Secretary of State 1966 381 U.S. I : 14 Law Ed 2d 179 raised the question whether the Secretary of State was statutorily authorised to refuse to validate the ' passports of United States of America for travel to Cuba as a tourist and for the purpose of satisfying his curiosity about the state of affairs . in that country. The Court by a majority view held that the ban on travel to Cuba is‑authorised by the broad language of the Passport Act and that such a restriction was Constitutional. It was further held that freedom of movement was a right protected by the liberty clause of the fifth amendment and that the Secretary of State. was justified in attempting to avoid serious international incidents by restricting travel to Cuba and summarily rejected appellant's contention that the denial of passport infringed his first Amendment rights by preventing him from gathering first knowledge about Cuban situation. The cases of Kent and Herbert Aptheker relied above were distinguished .on the ground that 'the refusal to validate appellant's passport does not result from any expression or association .on his part; appellant is not being forced to choose between membership. .of an organization. and freedom to travel.' .

26. The decision in Kent v. Dulles was not concerned with the validity of any legislation preventing any person to proceed abroad nor did it recognize the right to travel as founded in 'the first amendment which protects freedom of speech. ‑We fail to see how this decision can be of any help to the petitioners.

27. The right of a citizen to leave any country and to return to his country is recognized in the United States. While there . is no restriction on the citizen to return to his own country the Government of the United States does place certain restrictions for leaving the country. Even the right to travel outside 'the United .States is not unrestricted. The right of the American citizen to travel abroad as narrated above shows that even the. right to travel outside the country is not unfettered..

28. The decision in the case of Maneka Gandhi v. Union of India AIR 1978 SC 278 is also not helpful to the petitioners. '

29. The freedom of movement freely throughout Pakistan and to reside and settle in any part thereof is strongly relied upon as indicating that in the absence of such restrictions the other rights are not confined to the territory of Pakistan. Every citizen shall) have the right to remain in, enter and move freely throughout Pakistan and to reside and settle in any part thereof but this is subject to any reasonable restrictions. We are of the view that its application isl . intended to be only territorial.

30. The learned counsel for the petitioners contended that the period of ban ‑was not specified in the impugned orders. We have perused the impugned orders and found that the period of ban was not specified in the impugned orders. As we intend to declare the impugned orders on the ground of non‑furnishing of the grounds as without law authority as such we do not want to decide this contention and leave it open for the time being.

31. We have inquired from the petitioners as to whether they are proceeding abroad for medical treatment or for political reasons. The petitioner in Constitutional Petition 1227/1987 who was present in Court and the other petitioner through hi: counsel stated that they wanted to proceed only for medical treatment and they are prepared to give an undertaking to that effect.

32. We have perused the letter of Professor M.A. Najeeb of National Institute of Cardio Vascular Diseases and the recommendation of the Board comprising Professor S.H. $ahimtoola, Professor M. Sharif Chaudhry and Dr. Sanaullah Qureshi. A perusal thereof will show prima facie the petitioners' diseases need treatment abroad. It is for the respondent to consider whether the above undertaking is to be taken as a condition for allowing them to proceed abroad only for medical treatment.

33. We accordingly allow these petitions to the, extent of the prayer contained in para. 26(A) but allow thirty days to the respondent either to issue permission/no objection to the petitioners or to file petitions for leave to appeal against this judgment and to obtain stay order from the Hon'ble Supreme Court in case the respondent wish has to contest the above judgments. H.B.T./A‑249/x. Order accordingly.