A five-member bench of the Supreme Court on Friday expressed concern over the removal of names from the Exit Control List (ECL) and questioned the procedure for doing so as it heard a suo motu case on apprehensions that criminal justice might be undermined by people in positions of authority.
The bench is headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial, and comprises Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi and Justice Mohammad Ali Mazhar.
The notice was taken on May 18 amidst allegations levelled by the PTI that soon after coming to power, the present coalition government allegedly started influencing different cases and transferring investigators or officers supervising cases, especially related to corruption allegations.
During the last hearing, the court had restrained the relevant authorities from transfers, postings or removals of those involved in the investigation or prosecution of high-profile cases against top government functionaries pending in the courts of special judge (central) and the accountability courts.
It also issued notices to the interior secretary, the Federal Investigation Agency (FIA) director general, the National Accountability Bureau (NAB) chairman/regional directors, prosecutors general and advocates general in the provinces and the Islamabad Capital Territory (ICT) and the head of prosecution branch in the FIA and NAB.
When the hearing resumed today, Chief Justice Bandial observed that changes had been made to the ECL Rules on April 22, 2022 and the names of those involved in corruption and tax theft of Rs10 million were removed from it.
Justice Ahsan questioned how the change could be applied retroactively, while Justice Akhtar asked whether the Cabinet Division notification about the change in rules mentioned that they could be applied to names added in the past.
"Who benefitted from the rules?" asked Justice Naqvi.
Justice Akhtar also observed that the approval of the change in rules by a cabinet member who was facing cases would be a conflict of interest. He asked for details of which cabinet members had benefitted from the move to be submitted to the court.
He went on to observe that a member who was facing charges could have "disassociated" himself from the changes.
The CJP noted that the National Accountability Bureau (NAB) had said it was not consulted prior to the removal of 174 names from the ECL.
The chief justice asked Attorney General Ashtar Ausaf to read section 2 of the ECL Rules, 2010, which is related to grounds to prohibit persons from proceeding from Pakistan to a destination outside the country.
"According to the rules, [those facing cases related to] corruption, terrorism, tax evaders and loan defaulters cannot go abroad. On whose asking did the cabinet amend the rules related to tax evaders and [those suspected of] corruption?" he questioned.
The attorney general said he would present the minutes of the cabinet meeting to approve the changes.
Justice Ahsan asked whether names would automatically be removed from the ECL after 120 days, to which the attorney general replied in the affirmative.
'Benefit of cabinet members'
Justice Naqvi observed that cabinet members had also benefitted from the rules. "How can they introduce amendments for their personal benefit?"
Justice Akhtar questioned whether there was a mechanism whereby a minister facing a case would not receive a related file. "We know that there are only allegations against federal ministers yet. [But] they should not sit in such meetings themselves."
Justice Ahsan asked whether such changes could be brought about through a circulation summary, adding that it was the cabinet's duty to make a decision after reviewing each case.
NAB submits report on transfers
NAB's counsel, Hassan Akbar, said that 174 of the people on the no-fly list were placed on the anti-graft watchdog's recommendation. The bureau was not informed when their names were taken out of the ECL, he said.
The CJP asked what was the process of placing names on the ECL, to which the lawyer replied that there were certain SOPs were in place after which the names were included.
The anti-graft watchdog also presented a detailed report on the transfer of its officers. The prosecutor general makes a recommendation for transferring officers after which the chairman issues directives, the counsel said.
Justice Mazhar observed the procedure for reviewing was finished after the ECL rules were amended.
Justice Naqvi questioned whether there was a conflict of interest considering that the name of cabinet members were on the ECL and it would be amended by the cabinet.
"Let's see if the cabinet members who are on the ECL were present during the meeting where the rules were amended," the AGP replied.
Ausaf added that Law Minister Azam Nazeer Tarar had proposed amending the ECL rules. At this, Justice Naqvi remarked that the person Tarar was representing in court had benefitted from it.
Justice Bandial said that the court would not declare the government's decisions regarding the no-fly list null and void. "We do not want to interfere with the affairs of the administration," he said, adding that the apex court would act on actions against the state.
FIA proceedings against PM, CM
During the proceedings, the FIA report on the money laundering case against Prime Minister Shehbaz Sharif and Punjab Chief Minister Hamza Shehbaz, which was submitted to the SC earlier, also came under discussion. "The report gave the impression that several matters were dealt with in a non-serious manner," Justice Ahsan said.
He added that the law ministry on May 13 suspended FIA prosecutors including Sikander Zulfiqar. Apparently, the FIA prosecutors were suspended for not appearing for two hearings, he noted.
Justice Akhtar questioned whether these hearings took place after the new government assumed charge. "Did you tell the prosecutors that they were suspended irrespective of whether they appeared or not?" Justice Ahsan added.
"The facts were misrepresented in order to transfer the prosecutors. The investigating officer was also changed citing illness when he fell ill a month after his transfer," Justice Ahsan said.
It seems the FIA team was transferred in order to stop case proceedings, the CJP remarked, adding that Article 248 of the Constitution did not exempt ministers from criminal proceedings.
Criminal proceedings against federal ministers should continue to be investigated, the CJP said. "The criminal system should be the same for all," he added.
Subsequently, the hearing was adjourned for an indefinite period.
The apex court summoned the FIA director general to appear in person at the next hearing. FIA Director Law Operations Imran Gondal was also summoned along with the record.
The CJP had taken suo motu notice on the recommendations of a SC judge on perceived interference in the independence of the prosecution branch in the performance of its power and duties for investigation and prosecution of pending criminal matters involving persons in authority in government.
According to a press release issued by the apex court, such interference could influence the prosecution of cases, result in tampering or disappearance of evidence in courts or in possession of prosecuting agencies and lead to transfers and postings of officers on key posts.
The press release said that such actions, along with "media reports" about changes in accountability laws, were likely to "undermine" the functioning of the country's criminal justice system.
"That [is tantamount] to violation of fundamental rights affecting the society as a whole and eroding [of] the confidence of the people in the rule of law and constitutionalism in the country," it added.
The SC press release did not indicate which "pending criminal matters" it was referring to. However, the Federal Investigation Agency (FIA) is currently pursuing a money laundering case against Prime Minister Shehbaz Sharif and Punjab Chief Minister Hamza Shehbaz, whose indictment has been delayed since February.
The notice also comes amid allegations levelled by the PTI that soon after coming into power, the present coalition government allegedly started influencing different cases and transferring investigators or officers supervising cases, especially related to corruption allegations.
It is also pertinent to mention here that key figures from within the allied parties of the new government have called for either complete dissolution of the National Accountability Bureau (NAB) or amendments to the corruption watchdog's laws.
The National Assembly approved a bill related to those amendments a day earlier.