The Supreme Court Friday directed the federal government to bring the recent changes in the ECL rules within the ambit of the law within a week and cautioned that an order would be issued if its directive was not adhered to. The government introduced significant changes to the ECL rules in April in an attempt to do away with the practice of keeping people on the no-fly list for years and even for over a decade, Interior Minister Rana Sanaullah had said. A five-member bench, headed by Chief Justice of Pakistan Umar Ata Bandial, and comprising Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi and Justice Mohammad Ali Mazhar, had taken a suo motu notice of the changes in the ECL rules apprehending that criminal justice might be undermined by the people in authority. In a written order issued earlier this week, the top court had observed that it appeared the amendments made to the Exit From Pakistan (Control) Rules of 2010 had been enforced with retrospective effect. “This appears to have been done without the authorization necessary for giving such an effect to amendments in the rules,” it had said. When the hearing resumed on Friday, Chief Justice Bandial said the government should take adequate steps to bring the amendments within the ambit of the law. “We do not want to interfere in executive powers right now.” The chief justice grilled Attorney General Ashtar Ausaf about the process to remove names from the ECL, says a news report. Ausaf said freedom of movement and to travel abroad were constitutional rights of every citizen and a person’s name could not be put on the ECL simply because of ongoing investigations by the National Accountability Bureau (NAB) and Federal Investigation Agency (FIA). “The government amended the ECL rules after fulfilling all legal aspects. The cabinet has written that the amendments will be applied retroactively. Amendment to the ECL Rules is at the discretion of the federal government,” Ausaf said.
He told the court that the cabinet members’ names were removed from the ECL so the government could function smoothly. “There is no law that states discussion with NAB is necessary for removing the names.”
The chief justice remarked that the court knew 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 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 the NAB’s instructions, the chief justice said it meant the anti-graft watchdog considered the matter prior to issuing instructions. “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. “NAB would refer [again] only if it knew of the removal. The name of a suspect, who the SC directed [to be put on ECL], was also removed,” the CJP said. Justice Naqvi observed that it would have been better for the government to look at each case individually.
Justice Bandial said the court desired that justice be done to everyone through implementation of the law. He also questioned why the changes were applied retroactively. However, the attorney general denied that the purpose was to benefit specific people.
‘How can decisions be taken for personal benefit?’ Meanwhile, Justice Akhtar 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.
“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 court included Khawaja Saad Rafique’s name [on the list],” CJP Bandial pointed out to which the attorney general replied that Rafique was not present in the cabinet meeting that approved the amendments.
“According to the record, Khawaja Saad Rafique has approved the [amended] rules. Should ministers not have kept themselves separate from the matter?” Justice Akhtar questioned. “How can one take a government decision for personal benefit? Is there a code of conduct for ministers regarding personal cases?”
The AGP replied that as per the code of conduct, a personal case was not sent to the minister concerned. At this, Justice Akhtar questioned why the code of conduct was not implemented. However, the attorney general argued whether the cabinet could not take any decision if the prime minister’s name was on the ECL.
“It would be appropriate that such a cabinet be formed in which nobody’s name is on the ECL,” Justice Akhtar remarked.
The chief justice said the court was not hearing the case to punish anyone. Justice Akhtar asked who had decided that the amendments would be applied retroactively, to which the AGP replied that the decision was made by a subcommittee.
