Supreme Court questions ECL tweaks

Court says it’s unclear how cabinet members, who benefitted from amendments, approved them

ISLAMABAD:

The Supreme Court on Thursday raised questions on the amendments to the rules related to the Exit Control List (ECL).

A five-judge larger bench, headed by Chief Justice of Pakistan Umar Ata Bandial, issued an order while hearing the suo motu case regarding alleged executive interference in high-profile cases.

The order read, "Having considered the amendments at some length with the assistance of the learned Attorney General, it seems to us, prima facie, that they are prospective in nature.”

It stated, “The retrospective effect given to them appears to have been done without due and proper application of mind to the relevant principles of law and statutory interpretation, and that this may therefore not be in accordance with law.”

The order added that Attorney General for Pakistan Ashtar Ausaf had attempted to argue that at the cabinet committee stage, there was an intention that the amendments would provide for retrospectivity and it was on such basis that the concerned department or ministry had applied them.

"This aspect of the matter is however not duly reflected in the record. The learned attorney general also undertakes to coordinate with all concerned ministries/departments in order to ensure that the apparent problems identified and pointed out by the court in the procedure adopted in constitution of the cabinet sub-committee as well as in the mode and manner in which the recommendations were circulated amongst the cabinet members will be addressed and, in particular, those members of the cabinet who stand to benefit from the amendments in question will recuse themselves from consideration thereof as is apparently required by the ministerial code of conduct.”

The court noted that the position had been taken that the amendments to the Exit from Pakistan (Control) Rules, 2010 framed under the Exit from Pakistan (Control) Ordinance, 1981 had a retrospective effect in view of the fact that they conferred certain benefits.

“We note that the entire exercise of amending the rules, starting with the reconstitution of the cabinet committee which had been constituted for the purpose of recommending amendments to the notification of the amendments and they thereupon being given immediate effect, has been dealt with on a highly accelerated timeline over a course of only two days.”

The order read that the judges on the bench had noted that the summary of the proposal made by the committee had purportedly been approved through circulation among cabinet members, some of whom were present in Islamabad while others were not available.

"In this context, [a] reference has been made to Rules 17 and 19 of the Rules of Business, 1973 to contend that the said rules envisage that where a member of the cabinet does not express any opinion, the summary will be deemed to have been approved by him.”

The judges noted that on a query from the court, it had been admitted by the attorney general that the ministerial code of conduct provided for the recusal of cabinet members, who may have a conflict of interest or stand to receive a benefit on the basis of a summary.

“In this situation it is unclear from the record how the summary could have been approved expressly or by the aforenoted implication by members of the cabinet whose names existed on the ECL and who clearly stood to benefit from the amendments in question.”

The judges also noted that neither any structure was provided to examine and assess each case on its own merits nor was any such exercise admittedly undertaken.

“It appears that the amendments have been structured to result in the automatic removal of a person's name from the ECL after the stipulated period, and even otherwise an unbridled discretionary power has been given to the concerned ministry/functionaries to remove the names of persons at their own whim without reference to the facts and circumstances of each case.”

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The order read that the bench had asked the AGP whether, if as contended by him that the amendments had retrospective effect was the correct position in law, it was even then not advisable that such operation should have been appropriately modulated.

"The retrospective effect could, eg (and this was put to the learned attorney general), have been limited only to persons other than the ministers and those who had no nexus or connection (whether by way of any personal, political or other relationship or affiliation) with them, and a separate category created for ministers, etc for whom the benefit would only be available prospectively.”

The court noted that the AGP had sought time to examine this, and other, aspects of the matter and consider how to correct, rectify and address the issues and problems pointed out by the bench.

The court also observed that the agencies concerned on whose recommendations the names of different persons were placed on the ECL and against whom cases were either pending in courts or were under investigation had neither been consulted nor notified when those people were removed from the ECL immediately on the amendments coming into effect on April 4 this year.

"In this context, the prosecutor general, NAB [National Accountability Bureau] has categorically stated that they were not consulted. The same appears to be the case with FIA [Federal Investigation Agency] who has not been consulted either.”

The court directed the AGP to coordinate with the NAB prosecutor general as well as FIA director general to formulate standard operating procedures for undertaking an assessment on a case-to-case basis.

The order read that on the last date of hearing, the SC had directed that the record or evidence of all high-profile cases which were either pending in courts or were under investigation should be secured and kept under safe custody.

"The learned prosecutor general, NAB, as well as DG, FIA, have categorically stated that the said exercise has been undertaken. Such record has been placed under lock and key, surveillance cameras have been installed and special guards have been assigned to the premises where such record/evidence is being kept under safe custody. Similar instructions have been issued to the regional offices.

“Further, certificates in this regard issued by heads of regional offices have also been placed on record. In order to further secure the integrity and proper preservation of the record/evidence, we direct that digitised copies (in PDF form) be transmitted to this court for safe custody within 15 days from today. The PDF files shall be in the form of folders for each high-profile case separately along with a detailed index. The FIA DG as well as Prosecutor General, NAB, undertake to do so.”

The order also noted that the FIA DG had filed a list of persons who had travelled abroad after their names had been removed from the ECL. “We, however, note that such record, as presented, is rather haphazard and there appear to be some discrepancies therein. Confronted with this situation, the learned attorney general undertakes to file an updated and current list prepared in a systematic manner. Let the needful be done before the next date of hearing.”

The SC order further read that the FIA DG had submitted that on account of a restraining order passed by this court, routine postings and transfers had been affected which were likely to hamper the working of the department.

“In this context, he maintains that the post of regional director, Lahore is lying vacant. It is stated that this post is essentially of an administrative nature and does not have direct operational control over the high-profile cases. He seeks permission to make an appointment against the said post. In this context, it is clarified that as far as high-profile cases are concerned, the investigating officers who are associated in the investigation of such cases will not be removed, transferred or changed till further orders. Likewise, the prosecutors who are appearing in courts to prosecute the cases which are pending in courts will not be removed, changed or transferred till further orders. However, routine postings and transfers relating to officers working in an administrative capacity and not associated in any manner with the high-profile cases may be undertaken in accordance with law and the relevant rules/regulations, etc.”

The hearing of the case was adjourned till June 14.