The recent inclusion of 172 names in the Exit Control List (ECL) on the insistence of a Joint Investigation Team (JIT) looking into some fake accounts cases has generated intense heat and led to criticism from different quarters. This was done in one go and reportedly without stating sufficient reason for every individual in the list.

The Chief Justice of Pakistan (CJP) took notice and asked the federal government to review this decision, terming it akin to overstepping the legal ambit. He questioned the federal government as to how the name of the Sindh Chief Minister Murad Ali Shah, who was heading the second biggest province of the country, could be put on the same list. Besides, the inclusion of these names just on the basis of a report was also questioned.

The said action by the court has, in fact, given a stimulus to an already initiated debate on how to check the discretionary powers of the federal government or the interior ministry to put people’s name on the ECL. The law still followed in this respect is The Exit From Pakistan (Control) Ordinance 1981, promulgated by General Ziaul Haq around 38 years ago.

The law is termed oppressive, that is why the sitting Senate Committee on Interior has suggested some amendments in it so that it cannot be used to target political and other opponents.

Though the 1981 Ordinance has remained intact so far, some procedural changes in rules were made in the past. For example, during the term of former interior minister Chaudhry Nisar Ali Khan, the interior minister was allowed to put names of terrorists, members of proscribed organisations and those requested by security organisations, on the ECL. Later on, the minister changed the policy and established a committee under the interior ministry to decide whether a person’s name should be placed on ECL or not.

However, during the term of his successor Ahsan Iqbal, a new procedure was adopted according to which the federal cabinet undertook up the task of putting names on the ECL. It is assumed it was also in the light of an SCP order in 2016 that the outgoing PML-N government had abolished the committee of the interior ministry and withdrawn its powers.

Despite such attempts, it is still believed by many that the procedure followed to put people’s names on the ECL is biased, discriminatory, without any judicial oversight and is violative of the constitutional and human rights of citizens.

Former Interior Minister Faisal Saleh Hayat calls these steps cosmetic and says the democratic forces should have brought foundational changes in the ECL structure. "Primarily, the 1981 ordinance was promulgated with a declared purpose to counter criminals and anti-state elements. However, General Ziaul Haq used it to smear politicians."

"Unfortunately, the same method was adopted by successive governments, though they introduced some changes in the procedures," he adds.

Hayat sees inclusion of 172 names in ECL on somebody’s whims. "The government has violated the fundamental rights of the citizens by curtailing their right of mobility just on the basis of suspicion."

Under the 1981 Ordinance, under Article 2, sub-section 3 of this law, it is not necessary for the federal government to share the reason(s) why it is putting a person’s name on the ECL. The said clause states: "If, while making an order under sub-section (1) it appears to the Federal Government that it will not be in the public interest to specify the ground on which the order is proposed to be made, it shall not be necessary for the Federal Government to specify such grounds."

The Senate Committee on Interior has recommended doing away with this clause and making it compulsory to give reason why a name has been put on the ECL. Its other recommendations include informing the affected individuals within 24 hours about their names being put on the ECL, giving them the right to file a review of the decision within 15 days, and if there is no decision on the review in this time, the names should be removed immediately from the list.

Former Secretary Supreme Court Bar Aftab Bajwa, however, is in favour of the 1981 Ordinance, but wants to make an addition. He thinks that apart from Interior Ministry, security agencies, district heads of civil administration and law enforcing agencies, "judges [of high courts] should have this authority to put anybody’s name on the ECL if they have solid reasons to do so".

He is of the view that putting 172 people on the ECL by the federal cabinet is as per the law of the land. That is why, he says, "even the honourable CJP does not have the right to revoke such a decision unless a bench of at least three judges hears the case and asks to remove the names from the ECL". For this very reason, Bajwa says, the CJP referred the case to the federal cabinet for review.

Bajwa shares that "different countries have laws on not permitting any person to go abroad for reasons like involvement in corruption, misuse of power, causing loss to government’s funds or property; economic crimes, acts of terrorism or involvement in conspiracies in these areas, heinous crimes, a threat to national security and so on". Besides, probationers and parolees are prohibited from leaving without the permission of concerned officers

In India, there have been incidents where courts have asked the accused to submit passports at the time of bail. In the UK, the passport office takes such a step if there is a court order to do so.

Advocate Sardar Asif Ali Sial says no doubt states have such laws and there is nothing wrong with these if they follow certain principles like those mentioned in the International Covenant on Civil and Political Rights (ICCPR). "The ICCPR," he says, "permits states to place restrictions on people’s right to leave provided these are lawful, imposed with the objective to maintain public order and meant to protect public health or morals or the rights and freedoms of others.

"It has also been made clear that such restrictions must be imposed according to a precise criteria and those charged with their execution must not have any discretionary powers. This is what’s exactly needed in our country."