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November 16, 2019

Nawaz Sharif’s removal from ECL: LHC rejects Centre, NAB objections

November 16, 2019

LAHORE: The Lahore High Court (LHC) on Friday admitted for regular hearing a petition challenging the government's condition of furnishing indemnity bonds in order to secure the removal of ailing former prime minister Nawaz Sharif's name from the Exit Control List (ECL).

The court took this decision after rejecting objections of federal government as well as the National Accountability Bureau (NAB) seeking dismissal of petition for being “non-maintainable” due to court jurisdiction.

A division bench, headed by Justice Ali Baqar Najafi, ruled that the court could hear the PML-N supremo’s petition, as federal government functions in the provinces which confer the jurisdiction upon the high courts to hear cases and jurisdiction upon the matter relating to it.

After declaring the petition as maintainable, the LHC initially deferred the hearing for Monday, summoning lawyers from both sides to present arguments on the merits of the petition. However, later the court decided to hear it on Saturday after PML-N's lawyers made a request to the court. The court will now resume hearing on 11:30am on Saturday (today).

As the hearing commenced, the court asked whether the federal government had furnished its written reply. To which, the government's lawyer, Additional Attorney General (AAG) Chaudhry Ishtiaq A Khan, responded in the affirmative.

The court asked NAB to provide a copy of reply to the petitioner's lawyers and told them that they could take time to read the government's response and briefly adjourned hearing.

In its 45-page reply, the federal government raised objection on the LHC jurisdiction, saying the LHC does not have the jurisdiction to hear the petition.

He said because Nawaz was sentenced by a NAB court in Islamabad and the appeal against it is being heard in the Islamabad High Court (IHC), the request seeking removal of Nawaz's name from the ECL could only be heard by the IHC, as per judgments of Aqeel Karim Dhedhi and other cases.

AAG Khan argued that the government had not asked the Sharif family to submit surety bonds but indemnity bonds and that if Nawaz has reservations regarding submitting the same, he can approach the IHC.

The bench pointed out that the Chaudhry Sugar Mills case in which Nawaz is nominated is being heard in Lahore while PML-N counsel Pervez reminded the court that the Avenfield case had been filed by NAB Lahore. AAG Khan said a court in Karachi had rejected a petition as non-maintainable that challenged a NAB case filed elsewhere.

At this, Justice Najafi reminded the government counsel that the petition currently being heard by the court concerns an ECL issue and a man who is "very ill".

“Cases against Nawaz are being heard in various courts of the country, adding that it has allowed the former prime minister to travel abroad for four weeks subject to furnishing of indemnity bonds,” the government reply added.

According to the government reply, Nawaz's name was added to the ECL based on the National Accountability Bureau's (NAB) recommendations.

As the court reassembled after the break, PML-N President Shahbaz Sharif's counsel, Amjad Pervez opened his arguments, saying the LHC has the jurisdiction to hear the petition. He presented copies of several past court judgements to substantiate his stance.

“The government cannot deprive a citizen of their fundamental rights,” the lawyer argued, citing the example of former military ruler Gen (retd) Pervez Musharraf, who was allowed to travel abroad.

However, the bench turned down reference, saying Musharraf's case could not be citied here because he had not been convicted when his name was taken off the no-fly list.

Justice Ali Baqar Najafi, who was heading the bench, noted that according to the record, NAB has left the entire matter relating to removing Nawaz's name from the ECL to the government.

Adding to this point, Advocate Pervez said NAB had, in a letter, stated that the government had the authority to add or remove names from the ECL. He said following this statement, the federal law minister had asked NAB to again clarify its stance on the matter.

Government counsel AAG Khan informed the court that the names of Nawaz and his children Maryam Nawaz, Hassan Nawaz and Hussain Nawaz were added to the ECL in the Avenfield case after the Supreme Court had ordered the filing of references against them. He said Nawaz's name was added to the no-fly list after fulfilling all legal requirements.

The bench put a query to law officer as to which court a person would approach if they were a resident of Karachi and their name was added to the ECL in Islamabad. The law officer, however, did not render a satisfactory answer and said every case had different circumstances and merits.

After hearing the arguments, the high court reserved its judgement on the maintainability of PML-N's petition. Later, the court released its 3-page order and rejected federal government and NAB objections regarding maintainability of the petition.

The order says, “The arguments advanced by the learned additional attorney general that the condition mentioned in the impugned memorandum are based upon the judgment pronounced by the accountability court, Islamabad and challenged before Islamabad High Court, therefore, this court lacked jurisdiction, has not impressed us for the simple reason that it is not the case of respondent (...federal government) that impugned order (…pertaining to condition of secure indemnity bond for Nawaz Sharif to travel abroad) does not apply in province of Punjab and if petitioner (…Nawaz Sharif) wants to exit from the territorial jurisdiction of this Court (…LHC), he would not be stopped.”

Ahead of the hearing, strict security arrangements were made. PML-N's legal teams as well as party leaders were present in the courtroom for the proceedings. A two-member bench comprising Justice Najafi and Justice Sardar Ahmad Naeem had taken up the petition on Thursday, the same day that a PML-N legal team filed it.

APP adds: Counsel for Shahbaz Sharif submitted that if a person living in a province was affected by a decision of the federal government or a federal institution, he could approach the provincial high court for redress of his grievance, as per judgments in LPG Association.

Justice Najafi asked as to who recommended for placing Nawaz Sharif’s name on the ECL. The NAB letter stated that NAB Islamabad made the recommendation, but a copy of the same was also forwarded to NAB Lahore, Amjad Pervez told the court, adding that NAB, through a recent report, had told the government that since Nawaz Sharif’s name had been placed on the ECL, therefore, it did not have further role in the matter and now it was sole prerogative of the government. Amjad Pervez argued that as per Article 199 of the Constitution, the Lahore High Court had jurisdiction for hearing the matter.