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Legal Eye

November 16, 2019

Nawaz and the system


November 16, 2019

In Nawaz Sharif’s case, the system as represented by the PTI regime has one concern: that NS shouldn’t die on its hands, and if he does, the state should be well placed to blame NS for his death.

That is what NS’s conditional removal from the ECL is about. Our system has been ruthless and reckless with civilian politicians, starting with Liaquat Ali Khan, then Zulfikar Ali Bhutto and then to the next generation including Benazir Bhutto and now NS. Why must the ugly and divisive parts of our history be played out again and again?

Human life is ephemeral. People die. But when end of life is linked to preventable acts or callous omissions, people attribute blame. When BB was assassinated, the effort was to pin blame on her. Who asked her to open the roof and step out, went the refrain. But the people didn’t blame the victim. They pinned it on the system.

NS is very ill. Yes, he has been convicted for possessing assets beyond his means, appeals against which are pending. But he hasn’t been awarded the death sentence. If his jail term becomes a death sentence, people will apportion blame – and not to Nawaz.

Exit from the Pakistan Control Ordinance, 1981 (ECL law) is a fetter on the right of an individual to travel. It is a bad law, but hasn’t yet been declared to be in breach of fundamental rights or ultra vires the constitution. So it is a valid law. Under this law, the federal government has authority to prevent anyone from traveling out of Pakistan. The ECL law is supported by the Exit from Pakistan Control Rules, 2010 (ECL rules), which allow the federal government to place anyone on the ECL who is involved in corruption or misuse of authority causing loss to the exchequer.

It was in exercise of this power and prerogative that the federal government placed NS on the ECL pending his bail hearings after his conviction. The state didn’t want NS to leave the country even if he was granted bail by the court and even if the court didn’t place any restrictions on his travel outside Pakistan (as the court has done in the case of Maryam Nawaz). So NS is on the ECL not because he was convicted or because he has been accused in another matter and is undergoing trial. He is on the ECL because the federal government placed him on the ECL of its own volition.

Rule 3 of the ECL rules says that if a person is in judicial custody and is likely to be released on bail, he will remain on the ECL till such time that his name remains on the ECL. This means that even after the court bails someone out, the bail order does not automatically override the federal government’s order placing someone on the ECL. Such person still needs to ask the federal government to remove his name from the ECL. And if the federal government refuses to do so, he needs to challenge such refusal in court if the refusal is deemed unfair or unreasonable.

In NS’s case the first mindboggling thing is Barrister Shahzad Akbar (the PTI’s asset recovery hit-man) claiming that NS’s name isn’t being removed from the ECL, but that he is being granted a one-time permission to travel. NS isn’t barred from traveling by court. He can’t travel because he is on the ECL. And till he is on the ECL he can’t travel. So unless the federal government exercises its power to remove him from the ECL ie withdraw the previous order placing him on ECL, the FIA can’t let him out of the country. So he can’t remain on the ECL and also be allowed to travel abroad.

The federal government can of course remove his name from the ECL now and place it back on the ECL when circumstances change (eg he gets better or doesn’t need any further treatment abroad). The federal government could also simply refuse to remove his name from the ECL saying he might be ill or might even die, but that doesn’t entitle him to travel outside Pakistan or require the state to allow him to do so. Had that been the case, it would be for the courts to determine if such refusal was unreasonable, if NS had chosen to challenge such refusal order.

But what the federal government can’t do is make his removal from the ECL contingent on NS furnishing an indemnity bond. Under the ECL regime, the options available to the state are simple: remove him from the ECL or refuse to do so. There are many reasons for this. The first and foundational legal reason is that the state isn’t authorized to do so under the ECL law. That it isn’t prohibited from doing so isn’t relevant. In a democratic system that practises rule of law, the state exercises power delegated by the people. It can only exercise such power as is vested in it by law.

There is no unstated power that the state possesses. This is what distinguishes it from ordinary citizens. A citizen can do what he isn’t prohibited from doing. State and state functionaries can only do what they are allowed to. The power to make NS’s removal from the ECL conditional upon furnishing a bond must be rooted in a provision of law that allows the state to do so. And there is none. Second, the object of the ECL law is not to recover money. It is to ensure that an accused (or convict) is unable to evade justice being served to him in accordance with law.

The state has decided to allow NS to travel for medical treatment because the state believes he needs it (on the advice of the medical board it has appointed). When he is being sent abroad because the medical board has confirmed that doctors here are unable to diagnose the cause of continuing decline in his platelets, there can logically be no concomitant finding that his motive to travel abroad is to dodge the justice system. Third is the issue of conduct. NS was allowed to travel abroad by the court during his accountability trial and he returned to serve his sentence.

The Islamabad High Court granted him bail post-conviction and he didn’t breach the conditions of his bail. The Supreme Court granted him limited time bail and he didn’t abuse the privilege. In view of past conduct, there is no basis to argue that he will abuse the allowance being made to seek medical treatment abroad. Four, should he abscond post-treatment and become a fugitive from law, the bail bonds already submitted under orders of the IHC and the Lahore High Court will be cashed, his appeals won’t be heard and his property will be liable to be confiscated.

And finally, there is the silliness of what the state is proposing. If the indemnity bond is required to be in the form of a bank guarantee etc (ie a contract between the state and a bank, to be encashed if NS refuses to return), the bank will require collateral equal the guarantee amount that NS might not have. If it is meant to be a personal bond (ie a contract between the state and NS), the state will need to sue for enforcement of such contract, which will take ages. The more effective option in such case would be to confiscate property as explained above.

Today we are a bitter, divided and cynical polity losing basic human decency. Those with vile ideas devoid of principle prosper in this system. To refuse to remove NS from the ECL on the basis that no citizen has a right to travel abroad and outside the jurisdiction of courts pending trial or adjudication of appeals would be a contested but defensible position. To allow him to go with the possibility of him becoming a fugitive at his own peril would be the wiser choice. But political gimmickry and wiliness as characteristic features of state policy is just bad form.

The writer is a lawyer based in Islamabad.

Email: [email protected]