SC directs govt to synchronise changes in ECL rules with law
| Asks FIA DG to seal record of all high profile cases
ISLAMABAD – The Supreme Court of Pakistan Friday directed the federal government to bring the recent changes in the rules of the Exit Control List (ECL) in accordance with law within one week.
A five-member bench of the apex court headed by Chief Justice of Pakistan Justice Umar Ata Bandial and comprising Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi and Justice Mohammad Ali Mazhar conducted hearing of the suo moto notice regarding the apprehension of undermining the criminal justice system. The bench directed Director General (DG) FIA Rai Tahir to seal the record of all high profile cases and keep them at an allotted room in the FIA office and one copy of all cases should be sent to the Supreme Court.
The Chief Justice said that they are not to fix the individual responsibility but they want that the process of law is strictly be adhered. He added that the ministers against whom there were apprehension should not have sit in the cabinet meeting, which approved the amendment in the Exit from Pakistan (Control) Rules, 2010.
Attorney General for Pakistan Ashtar Asauf said that the changes in the ECL Rules were in accordance the law and the constitution. They have restored the fundamental rights. He said that according to his opinion there should no law of ECL. At this, Justice Bandial said that it may be his opinion, but before the court is matter of law.
The Supreme Court expected that a person with integrity and well repute will be appointed as the Chairman National Accountability Bureau (NAB). It further said that the extraneous parties should not come in to influence the appointment of the NAB chief. He hoped that the government will act sensibly in this matter.
Justice Bandial said that they could not ignore the changes made in NAB law and they are examining changes being made to the National Accountability Ordinance 1999 – the NAB law – by the federal government as it could not overlook the efforts to “minimise the role” of the accountability watchdog. He questioned that why the changes were applied retroactively.
Attorney General for Pakistan Ashtar Ausaf informed that 174 persons were removed from the Exit Control List (ECL). The NAB has not provided reasons to recommend that these persons be place on ECL.
The Chief Justice said that whether the federal government had consulted the NAB before removing their names from ECL. The Court noted that there are cases of corruption and corrupt practices against the persons whose names were removed from the ECL.
Justice Mazhar said that whether the government had evaluated the matter by case to case basis. The AGP replied that due to flux of time the government could not do it. Ashtar Ausaf told that he would sit with the officials of NAB, Ministry of Interior and other agencies to assess what should be the proper procedure in order to remove names from ECL. He said that there are many judgments of the apex court wherein it has been declared that the freedom of movement under Article 15 of the Constitution is the fundamental right. Justice Mazahar Naqvi said that the government extended the right of movement to travel abroad.
Justice Ijaz ul Ahsan inquired that what was hurry that on 19th April the Committee has recommended and two days later the government removed 444 names from ECL.
Justice Muneeb noted that the ministers whose names were on ECL were sitting in the cabinet meeting to amend the ECL Rules. He said that this is conflict of interest. He observed that half of the cabinet is sitting abroad and the ministers should have followed the code of conduct to approve law to benefit themselves.
Justice Muneeb asked whether an amendment should be carried out if the relatives and friends of those who were doing it benefitted from it. He also asked why there was a hurry to remove names from the ECL. He further said, “There is no mention of the amendments being applied from past dates. How can ministers whose names are on the ECL decide to remove them?”
The Chief Justice pointed that the court included Khawaja Saad Rafique’s name [on the list]. To which the attorney general replied that Rafique was not present in the cabinet meeting that approved the amendments.
The AGP contended that the changing in the ECL Rules was the collective wisdom of the cabinet. He said that the Prime Minister [Shahbaz Sharif] name was also on the ECL, then if he had not chaired the meeting then how the cabinet could have approved the amended rules. He informed that 30 persons have left the country, but 23 came back and seven persons, including Sharjeel Inam Memon, are still abroad.
Justice Bandial said that they could not ignore the NAB law. There should have been Standing Operating Procedure (SOP), which needs to be adopted before removing names from ECL.
Justice Bandial asked the prosecutor general NAB and the Director General FIA to evaluate cases and if in any case finds no substantial evidence and the progress then disposed them of. He added that do not punish someone against whom there is no concrete evidence. However, the CJP said that do not throw away the record of the high profile cases.
The AGP adopted the stance that the government amended the ECL rules after fulfilling all legal aspects. The cabinet has written that the amendments will be applied retroactively. Amendment of ECL Rules is at the discretion of the federal government.
The Chief Justice remarked that the court was aware of that the government had “freed” a person it had instructed to be jailed, without naming that person. When the attorney general argued that the reference against the said person was from 2018, the CJP noted the SC’s order was from 2021.
However, AGP Ausaf contended that the court’s orders had been implemented but the person was freed after the case was concluded. Justice Bandial said that if an agency was investigating someone, the government should hold discussions with it prior to removing the person’s name from the ECL.
When the attorney general said names were put on the ECL on NAB’s instructions, Justice Bandial said that it meant the anti-graft watchdog considered the matter prior to issuing instructions.
He added that NAB does not put every suspect’s name on the ECL. According to NAB, the names of people who looted billions were removed. Ausaf argued that NAB could request re-adding a person’s name to the ECL.
Justice Naqvi observed that it would have been better for the government to look at each case individually. Director General FIA Rai Tahir informed that cases involving amount Rs1 billion and above are considered high profile cases.
Later, the bench deferred the hearing till June 14 for further proceeding in this matter.