The mysterious blacklist

On October 18, 2019 news broke that Steven Butler, the Asia Programme coordinator of the Committee to Protect Journalist’s (CPJ) was barred from entering Pakistan by immigration authorities.

The CPJ had only come to my personal attention recently as it repeatedly exposed the abuses being suffered by journalists in Indian Occupied Kashmir since the latest curfew was imposed. Therefore, I was even more alarmed that authorities had taken such an action which would erode Pakistan’s own credibility regarding freedom of press.

As reported, the reason for refusal of entry was the infamously secret blacklist maintained by the Ministry of Interior. All we know is that Mr Butler had landed in Lahore to participate in the Asma Jahangir Conference – Roadmap for Human Rights in Pakistan. The authorities certainly have an appreciation for irony.

Of course, Mr Butler is not the first victim of this mysterious list. The reason I refer to the blacklist as mysterious is that first, no one really knows – apart from the authorities – who’s on this list. You only find out that you’ve made the cut if you attempt to travel to or from Pakistan. It is also mysterious because no one really knows what law provides for the existence of such a list. Yet the biggest source of mystery is how this list continues to exist despite being declared illegal by the Senate Standing Committee on Law and Justice.

The blacklist was not just condemned as unconstitutional and unlawful by members of opposition but also by the incumbent government’s own minister for human rights. During the course of the proceedings of the Senate committee, the minister is quoted as having stated: “Being the minister for human rights, I oppose the blacklist. The blacklist cannot exist in a democracy”. The list certainly precedes the incumbent government and little was done to abolish it by prior governments. Therefore, credit is certainly due to the minister for taking this principled stance, even though action has been lacking as is apparent from this latest incident.

What is not a mystery is the popularity of the blacklist as a tool for authorities to arbitrarily deny the right of entry into or exit from Pakistan. While the constitution of Pakistan guarantees citizens the fundamental right to freedom of movement through Article 15, it also allows the same to be reasonably restricted by law. The Exit From Pakistan (Control) Ordinance, 1981 is one such law which vests the power to prohibit a person or class of persons from exiting Pakistan despite a valid passport.

This law is the basis for the more well-known Exit Control List (ECL). Once upon a time in the pre-18th Amendment days, the federal government was not required to afford anyone an opportunity of hearing before placing their name on the ECL or to even provide them reasons for doing so in terms of the law. However, the introduction of Article 10A – which provides for the unqualified right to fair trial – to the constitution through the 18th Amendment changed the landscape.

There has been much litigation concerning the ECL post 18th Amendment, and the superior judiciary has laid down very clear principles for placing the name of a person on the ECL. Although such decisions have not entirely curtailed the penchant of the authorities to act arbitrarily while placing the names of citizens on the ECL, by and large the discretion of the government and other agencies has been fettered.

Just one example of this continued disregard is the fact that in the case of Federal Government of Pakistan vs Ayyan Ali, the Supreme Court upheld the verdict of the Honorable Sindh High Court which directed amongst other things, to “place on its website the names of all who have been placed on the ECL, and to continue to so display the names which may be added to the said list …”. To date, I for one have been unable to find any such list on the website of the Ministry of Interior.

Regardless of the levels of compliance with the verdicts of the superior courts, it seems that such constraints have led to the blacklist becoming the weapon of choice for those who consider themselves above the law. The Senate adopted Report No 7 of the Senate Standing Committee on Law and Justice on January, 28, 2019 which concluded “that the blacklist has no legal value and its [sic] ultra-vires the constitution…” and recommended the abolishment of all such lists immediately.

The reputation of Pakistan concerning protection of fundamental rights is not enviable by any means. Immediate steps must be taken to implement the aforesaid recommendations to give credibility to Pakistan’s voice in the international arena. The abolition of such lists is not only necessary to protect the rights of citizens but also to protect the credibility of Pakistan.

The writer is a lawyer based in Islamabad.

Email: address: aniquesalman@ gmail.com