As opposition cry foul, experts question the government’s excessive use of ECL power
The country’s politics has been moving around the use of Exit Control List (ECL) for the past several months with opposition parties complaining the government is misusing the ECL power for political victimisation.
Recently, the government told Senate that more than 3,000 people were removed from the ECL in the last three years (2015-2018). In a written response, Minister of State for Interior Shehryar Afridi highlighted that nearly 1100 people have been placed on the ECL too in the same period.
In the end of last year, the government came under fire during a National Assembly session for allegedly using ECL for political victimisation and the procedure that lacks transparency. At that time, the government put name of Pakistan Peoples’ Party leadership on the ECL. The government defends these measures saying if it does not act timely the politicians facing corruption cases might leave the country and never look back.
The ECL rules in Pakistan were originally set through an amendment in the Constitution in 1981. The ECL was introduced through an ordinance called Exit from Pakistan (Control) Ordinance, 1981 with a list of persons prohibited from leaving Pakistan. The ordinance aimed to provide for the control of exit of certain persons from Pakistan and gave power to the federal government which may, by order, prohibit any person or class of persons from proceedings from Pakistan to a destination outside Pakistan, notwithstanding the fact that such person is in possession of valid travel documents.
The law also stated that "before making an order the federal government shall not necessarily afford an opportunity of showing cause to the person against the order. However, the barred person was given a chance of review before the federal government. The law further read that "whoever contravenes, or attempts or conspires to contravene, or abets the contravention of, any such order shall be punishable with imprisonment for a term which may extend to five years."
The first rules for the ECL law were framed in 1983 and later in 2010. According to the Exit from Pakistan (Control) Rules, 2010 a person can be named on ECL if he is involved in (a) corruption and misuse of power or authority causing loss to the government’s funds or property; (b) economic crimes where large government funds have been embezzled or institutional frauds committed; (c) acts of terrorism or its conspiracy, heinous crimes and threatening national security; (d) case of key directors of a firm in default of tax or liabilities of not less than ten million rupees; (e) case of two or more key or main directors of a firm in default of loan or liabilities exceeding one hundred million rupees; (f) any case and name forwarded by the Registrar of a High Court, Supreme Court of Pakistan or Banking Court only; (g) drug trafficking.
The rules also say that the law would not apply to (a) persons involved in private disputes where government interest is not at stake, except cases of fraud against foreign banks and reputable companies with significant foreign investments; (b) person involved in crime like murder and dacoity, etc., unless special grounds are furnished by the relevant home departments; (c) directors who represent foreign investment in business; (d) women or children undergoing education who are appearing as directors merely due to their family relationship with major shareholders.
"Currently, the federal cabinet holds the power to approve the name of a person to be put on the ECL. However, cabinet has formed a committee led by interior minister and including finance and law minister with interior secretary as convener of the committee and they are supposed to discuss each and every case for recommending names for the ECL and forward the recommendations to the cabinet for approval," former law minister and reputed lawyer Barrister Syed Ali Zafar views. He says there are three categories of the ECL cases which include names sent by court (which can be put on the list without any deliberations); names sent by different law enforcement and other government institutions/organisations like National Accountability Bureau, Federal Investigation Agency etc; and the persons who do not appear in serious investigations or abscond. "There are chances of misuse of authority or lack of transparency of such names put in the list without proper reasoning. The ideal situation would be to debate and discuss each and every name properly to ensure transparency and inform the person who has been named in the list," he asserts.
A senate committee also called for revamping the ECL policy as it found no set criteria governing the ECL that restrains individuals from travelling abroad. At the end of last year, Senate’s Standing Committee on Interior also approved a bill to amend the law governing the ECL. Former chairman Senate, Raza Rabbani, presented the ‘Exit from Pakistan (Control) (Amendment) Act, 2018’.
According to the amendment recommendations a person whose name has been placed on the list should be informed within one day, and the person should be able to file a review of the decision within 15 days. And if there was no decision taken within this time period then the name should be considered removed from the list. The bill also opposed giving discretionary powers to any person or office to control this list and its procedure. The proposed bill suggests that some provisions of the ECL law are in conflict with the fundamental rights conferred by the Constitution.
Rabbani believes the interior secretary does not have the authority to place names on the ECL. "Giving any person or office discretionary powers is not right and the authority to place people on the ECL should be with the federal cabinet," he pleaded before the Senate.
Previously, efforts were made in 2013 to change the ECL law/procedure. The purpose of the amendment was to bar officials from placing a person’s name on ECL on verbal instructions or phone calls. This move came after the Supreme Court was approached to remove the name of former military ruler Pervez Musharraf facing treason charges.
"We hope the proposed ECL amendment bill will be tabled in the house for debate," says Senator Kalsoom Perveen from Pakistan Muslim League-Nawaz (PML-N), who is part of the concerned standing committee. "It is very important to change this law because it is being misused and there are many examples we know where the person does not know if his or her name is placed on the ECL." She says it should be mandatory for the authorities to inform the person to be named on the ECL in advance. "Even if people want to go for Umra they are asked to check whether their name is on ECL." She recalls that adding people on the ECL without proper reasons and explanation started a few years ago after Husain Haqqani absconded and his name was put on the list.