ISLAMABAD: In its detailed judgment on the lifting of travel ban on former president retired Gen Pervez Musharraf, the Supreme Court again stressed on Friday that the freedom of movement under the constitution was one of the fundamental rights guaranteed to every citizen which could not be abridged or denied arbitrarily on the basis of likes or dislikes.

“Considering the question of inclusion or retaining the name of Gen Musharraf in the Exit Control List (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,” said the verdict authored by Chief Justice Anwar Zaheer Jamali.

The judgment follows the March 16 short order by a five-judge SC bench upholding the June 12, 2014, Sindh High Court decision of removing Gen Musharraf’s name from the ECL. However, the short order had allowed the federal government as well as the three-judge special court seized with a treason trial of the former president to independently take any decision to regulate his custody or restrict his movement.

Soon after the short order Gen Musharraf left the country after the interior ministry removed his name from the ECL, with Interior Minister Chaudhry Nisar Ali Khan explaining that the decision had been taken in the light of the Supreme Court order.

Court issues detailed judgment about lifting travel ban on Musharraf

The SC’s detailed verdict said that Article 4 of the Constitution guaranteed the right to every individual to be dealt with in accordance with the law.

The order said the Exit from Pakistan (Control) Ordinance 1981, read with Exit from Pakistan (Control) Rules 2010, provided a complete mechanism for restricting the movement of a person, where there was lawful and valid justification.

But in the instant matter, it regretted, the option had not yet been exercised by the federal government upon independent application of mind to the case of Gen Musharraf or by the special court.

The court, however, admitted that its earlier interim order of April 8, 2013, in which a direction was made to the government to place the name of the former president on the ECL to ensure that he did not move out of Pakistan, had been passed before issuing notice to Gen Musharraf. The interim order for all intent and purposes was a temporary order which stood merged/vacated in terms of the final order of July 3, 2013, it emphasised.

Referring to June 12 SHC order which it had upheld, the Supreme Court explained that the high court had correctly and aptly taken into consideration the case law and recorded valid and cogent reasons for granting requisite relief to Gen Musharraf, thereby striking down the April 5, 2013, memorandum of placing his name on the ECL issued by the interior ministry.

Not only this but mindful of the sensitive nature and political hype of the issue, as an abundant precaution, the high court had also suspended the operation of its judgment for a period of 15 days to enable the appellant and respondents to avail of any other appropriate remedy, including their right to challenge the judgment in the apex court. Still the appellant (federal government) took no independent stance/decision on the matter, except following the remedy of challenging the judgment in this appeal, which was devoid of merits, the judgment regretted.

It noted that during the hearing of the appeal, the court had more than once asked former attorney general Salman Aslam Butt about the government’s stance and whether they intended to retain Gen Musharraf’s name on the ECL for any valid reason. But the AG was unable to come up with any specific instructions from the government, except that the inclusion of Gen Musharraf’s name in the ECL was solely on account of the directives issued by the Supreme Court and for no other reason, the judgment said.

Published in Dawn, April 2nd, 2016