Not nixing changes to ECL rules for now: CJP

ISLAMABAD: The Supreme Court Friday questioned amendments to the Exit Control List (Rules) 2010 and sought details of cabinet members whose names had been removed from the ECL.

Chief Justice Umer Ata Bandial said that at the moment they were not going to nullify the amendments made by the government to the ECL rules but there must be some code of conduct for implementing the law in letter and spirit. 

“We don’t want to interfere in the domain of the executive but the court will take action against steps taken against the state,” he said.

The CJP said that Article 248 of the Constitution did not exempt ministers from criminal procedures and criminal proceedings against them should continue.

A five-member bench of the apex court, headed by Chief Justice Umer Ata Bandial and comprising Justice Ijazul Ahsen, Justice Munib Akhtar, Justice Sayed Mazahar Ali Akbar Naqvi and Justice Mohammad Ali Mazhar, was hearing the suo motu case of perceived interference in independence of prosecution branch in performance of its powers and duties for the investigation and prosecution of pending criminal matters involving persons in authority in the government.

The court questioned the removal of names of ministers from the ECL and sought the names of those ministers on the next date of hearing. The court also summoned Director-General of the Federal Investigation Agency and Law Operations Director Usman Akram Gondal on the next date of hearing for assistance and adjourned the matter for-date-in-office (indefinite period).

At the start of hearing when Attorney-General Ashter Ausaf appeared before the court, Chief Justice Umer Ata Bandial diverted his attention towards a notification issued by the federal government on April 22, 2022, regarding amendments made to Rule 2 of the Exit from Pakistan (Control) Rules, 2010.

The Rule 2 prohibits any person from proceeding from Pakistan to a destination outside Pakistan if he is involved in corruption and misuse of power or authority causing loss to the government’s funds or property, economic crimes where large government funds have been embezzled or institutional frauds committed, etc.

“Who effected this notification and whether the federal cabinet had approved it,” the CJP asked the AGP. The AG replied in the affirmative. “Then give us the list of ministers who have benefited from this,” Justice Munib Akhtar asked the AGP.

The CJP said that they would not interfere in the executive’s powers but terrorists, tax and loan defaulters could not travel out of the country.

He said that the National Accountability Bureau had not been consulted before striking the names of 174 persons off the ECL. The CJP said that the FIA prosecution team dealing with high-profile cases had also been replaced.

Justice Ijazul Ahsen inquired if a name would be removed from the no-travel list after 120 days on its own. The AGP replied that the rule of 120 days would be applicable after the inclusion of a name in the list.

Justice Mazahir Ali Akbar Naqvi said that cabinet members benefited from the amendment they had approved. How could they amend the rule for their personal benefit? Justice Naqvi said.

“We know that at the moment there were only allegations against the ministers but if there is any code of conduct whereby a relevant file cannot be moved to the minister having allegations against him,” Justice Munib Akhtar asked. “The accused ministers should not sit in such meetings as well,” Justice Munib remarked, adding that facing cases and approving the amendment to Rules of the ECL was a matter of conflict of interest.

Justice Ijazul Ahsen said that the report submitted by FIA gave an impression that certain matters had been covered up with non-serious measures. The judge said that the Law Ministry had May 13 issued a notification of suspending prosecutors of the FIA along with Sikandar Zulqernain, adding that apparently they were suspended for not appearing in two hearings of the case

The judge said that an investigation officer was changed who after one month got ill and was hospitalised. Justice Ahsen recalled that on the last hearing they had sought details pertaining to change of the FIA investigation officers and questioned if record pertaining to the FIA investigation was secured.

Additional Attorney-General Aamir Rehman informed the court that it was safe at which Justice Ahsen asked the official to submit a written certificate through the FIA DG. “If complete record is not submitted, the FIA DG would be responsible,” Justice Ahsen said.

Justice Mohammad Ali Mazhar questioned if an accused could amend the rules for his personal benefit, adding that after making the amendment to the rules, the process of review came to an end.

Justice Ijazul Ahsen asked the AGP if 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.

The AGP said that he would find out whether the persons on the ECL had attended the meeting that approved the amendment. He said that he would present the minutes of the meeting of the cabinet.

He informed the court that Law Minister Azam Nazir Tarar had proposed the amendment to the rules, adding nobody, including the prime minister, had sought immunity in this regard. Justice Mazahir Ali Akbar Naqvi said that Tarar benefited a person he had counselled.

Justice Naqvi asked the AGP about the progress made so far in cases against the prime minister and his son. “If the prime minister has been indicted,” the judge asked. The AGP replied in the negative.

During the course of the hearing, the NAB counsel said that the bureau had recommended names of some 174 people for placing on the ECL, adding that those names were removed from the list without consulting it.

The CJP inquired about the process of putting names on the Exit Control List (ECL). The counsel said that names were put on the list in accordance with the Standard Operating Procedure (SOPs) set by the NAB.

The NAB counsel, while replying to a question regarding transfer of its officers, said that the HR DG had recommended names to the chairman for transfers and postings who issued orders accordingly.

Meanwhile, without any notice, ex-AGP Irfan Qadir came to the rostrum and said that he was representing Prime Minister Shehbaz Sharif and wanted to assist the court. The CJP told him that the court did not ask for his assistance.

Irfan Qadir insisted that it was a very important case and the court may formulate questions and he would assist it, adding that at the moment there was a tension between two political parties. The CJP asked Irfan Qadir to give his written formulations.