The Supreme Court on Friday directed the federal government to bring the recent changes in the rules of the Exit Control List (ECL) within the "ambit of the law" within a week, cautioning that it would issue an order if its directive was not followed.

On April 22, the government introduced significant changes to the rules controlling citizens' exit from the country in an attempt to end 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 (CJP) Umar Ata Bandial, and comprising Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi and Justice Mohammad Ali Mazhar, had taken suo motu notice on apprehensions that criminal justice might be undermined by people in authority.

In a written order issued earlier this week, the SC had observed that it appeared the amendments in the Exit From Pakistan (Control) Rules of 2010 had been enforced with retrospective effect.

"This appears to have been done without the authorisation necessary for giving such an effect to amendments in the rules," it had said.

When the hearing resumed today, 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."

At the start of the hearing, the CJP grilled Attorney General Ashtar Ausaf about the process to remove names from the ECL.

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 the Federal Investigation Agency (FIA).

The federal government analyses a person's right to freedom of movement and the allegations levelled against him before putting his name on the ECL, he informed the court.

"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."

He told the court that 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."

'Govt freed person court instructed to be jailed'

The chief justice remarked that the court was aware 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 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 with 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.

Meanwhile, Justice Naqvi observed that there was no justification for the ECL after the government's stance that the freedom to travel was a constitutional right.

"In my opinion, the ECL should not exist," the AGP responded. However, the chief justice said the court would not look at personal opinions in the case.

"Honesty, fairness and transparency should be taken into consideration while exercising powers," he added.

CJP's remarks on justice system

DG FIA Tahir Rai, who had been summoned by the court, said eight people, including PPP's Sharjeel Memon, had travelled abroad and not returned afterwards.

The chief justice pointed out that dates were not written correctly in the FIA's list for names on ECL, adding that it pained him when a prosecutor, during the hearing of a case, said that he was unable to find the record.

"It has been happening in NAB cases that record could not be found. If there is no material, that is a separate matter.

"The court is concerned with independent investigation and trial. It should not happen that the [evidence] is available but witnesses are silenced. NAB should take back cases in which it does not have evidence."

Justice Bandial continued that shoddy work on the prosecution's side had a negative effect on the case. The justice system needed to be improved, he added.

"It is wrong to say that Pakistan's judiciary is ranked 128th. Pakistan's ranking was determined on perception, not data."

No innocent person should remain in jail, the CJP said, observing that "wrong" decisions were overturned by the higher courts.

"Ninety per cent of verdicts are upheld in the higher courts. It has to be seen whether those convicted of heinous crimes can be pardoned."

Court asks for record of high-profile cases

The chief justice directed the DG FIA to inform the court if someone tried to forcibly get a case registered. "You are a civil servant. Do not accept anyone's interference. If someone puts pressure on you, inform the court [and] you will be given protection."

The court directed the FIA and the NAB to submit copies of records of all high-profile cases, along with evidence.

The bench also said that the FIA could change officials other than the investigation officers and prosecutors.

The prosecutor general said the court's directives could be implemented only after the new chairman NAB's appointment. The court then directed that it be informed if any pressure was exerted on NAB.

The chief justice said the court expected the government to appoint the new chairman after consideration. "We are keeping an eye on the matter and expect good from the government. We expect that a clean, honest, capable and reputable person will be appointed as chairman NAB."

He also directed the anti-graft watchdog to ensure it was not used for "revenge".

Subsequently, the hearing was adjourned till next week.

Suo motu

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.

The National Assembly and the Senate passed the NAB (Second Amendment) Bill 2021 last month, clipping the vast powers of the anti-graft watchdog.

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