The right to exit

November 26, 2014

Email

The writer is an attorney teaching constitutional law and political philosophy.
The writer is an attorney teaching constitutional law and political philosophy.

PREVENTING past politicians from returning and present politicians from leaving has long been a fixture of Pakistani politics. The Exit Control List (ECL), with names of those facing charges, investigations and aspersions, casts a looming shadow over the wrangling in Islamabad, its designations defining who is suspect and who is trapped, who must never return and who may never leave.

The origins of the law that permits and mandates the creation of the list, have, in the tradition of our many military coups and frequent emergency ordinances, been forgotten. In a past filled with legal conflagrations and constitutional departures, it is onerous to keep the sequences of sins straight.

The Exit from Pakistan (Control) Ordinance as the law in question is named, is in fact over 20 years old, having been enacted in 1981 during the martial law regime of Gen Ziaul Haq. Because it was passed without debate in any elected body, there are few legislative records that state the intentions behind the law when it was passed. Given the timing of its passage, it can be assumed that its purpose was to prevent various people being investigated by the martial law regime from leaving the country.

As per the law’s provisions, the government can prevent any citizen from leaving the country even if the person has valid travel documents. At the other end, the government faces no requirement whatsoever to either (a) show cause as to why such a restriction has been imposed on the person in question, or (b) provide grounds to the person when it determines that providing such grounds would be against the public interest.

In simple terms, the government can at any time and with no stated reason prevent a Pakistani from leaving the country by putting them on the Exit Control List permissible under the Exit Control Ordinance.


The government can at any time and with no stated reason prevent a Pakistani from leaving the country by putting them on the Exit Control List.


In his recent article ‘Imposing Limitations on the Right to Travel: An Analysis of Pakistan’s Exit Control Law’, lawyer Faisal Daudpota presents a compelling analysis of the unconstitutionality of the law’s provisions. In terms of its actual use, Daudpota details how the ECL has been used not simply to detain individuals who have ongoing criminal or corruption investigations against them but even those who are ‘suspected’ of such violations.

This is so, Daudpota notes, even though separate laws already exist limiting the exit of various government officials under investigation for the use of government resources. An imprisonment of as long as five years can be imposed on anyone who is found contravening or even conspiring to subvert the travel restrictions imposed by the government in the ECL. For those unlucky enough to find themselves subject to this sentence, the only form of review provided by the act is one by the federal government itself.

Even though the Exit Control Ordinance was passed during military rule, the Constitution enacted in 1973 had not been abrogated. Under constitutional provisions, a Pakistani citizen is granted the right to due process (ie rights cannot be taken away without the availability of legal recourse).

In addition, superior courts hearing challenges to the exit control law have found the right to travel to be a fundamental constitutional right. In the Wajid Shamsul Hasan vs Federation of Pakistan case, the court held that “the right of a citizen to travel abroad is a fundamental right guaranteed by the Articles 2A 4, 9, 15 and 25 of the Constitution of the Islamic Republic of Pakistan”.

Despite this ruling, and several others drawing attention to the unconstitutionality of the ordinance’s provisions that take away this right without permitting judicial review, the law remains in effect, permitting the government to abridge via the ECL the ability of any Pakistani to leave the country.

In the public and political sphere, those fed up with the successive waves of politicians who come into positions of power, loot the coffers of the nation and then abscond to a third country, see the Exit Control List as a nifty tool for allaying corruption and nab absconding fraudsters.

It is a lie happily promoted by governments past and present, because it allows the upkeep and maintenance of a law that effectively provides carte blanche to whoever is in power to exact petty revenge and pursue political harassment of opponents that is permitted by the ECL.

Some proof of the farcical reality of the law is the fact that while corruption cases are routinely lobbed and highly publicised travel restrictions imposed on this or that famous politician, none of the pilfered millions belonging to the nation ever seem to be recovered.

In effect, then, the ordinance is like so many other laws created under military rule: an effective tool for rulers present to exact revenge from rulers past, or to impose restrictions on any officials or bureaucrats who refuse to participate in the lies and corrupt practices of an existing administration. The records of the superior court cases reveal this.

Contrary to popular belief, it’s not always the well-heeled looters of governments past who are thwarted by the ordinance; officials who have irked superiors can, simply on the basis of accusations and suspicions, find their name placed on the list. Given the vast webs of silence and acquiescence that make Pakistan’s deep and cumulative corruption possible, these individuals can just as likely and even more frequently be those who refused to go along with looting and leeching from the country than those actually guilty of it.

A real effort against corruption requires a discarding of these lies and a debate in the elected legislature about a law that only pretends to prevent corruption and the seizure of national assets but in effect arbitrarily imposes culpability and grabs rights granted to citizens by the Constitution of their country.

The writer is an attorney teaching constitutional law and political philosophy.

rafia.zakaria@gmail.com

Published in Dawn, November 26th, 2014