How ECL Is Misused By The Authorities To Restrict Citizens’ Right To Free Movement
Fundamental freedoms of the citizens are guaranteed by the Constitution of Pakistan, and Article 15 of the Constitution provides that every citizen has the right to freedom of movement that is to enter or reside in any part of the state subject to reasonable restriction imposed by law in public interest. Similarly, Universal Declaration of Human Rights also states that everyone has the right to freedom of movement and residence within the border of each state.
The declaration further provides that everyone has the right to leave any country including his own and to return to his own country. Moreover, Article 12 of International Covenant on Civil and Political Rights to which Pakistan is also a party states that everyone shall be free to leave any country including his own. The Covenant states that this right shall not be subject to any restriction except for those which are provided by law and are necessary to protect national security, public order, public health and right and freedoms of others. The right to freely move or travel has later been guarded by the Courts around the globe. In a famous case of Kent v. Dulles, United States Supreme Court said:
“The right to travel is part of liberty of which citizens could not be deprived without due process of law under the Fifth Amendment…..Travel abroad like travel within the country, maybe necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or read. Freedom of movement is basic in our scheme of values.”
Thus, the right to freely ingress into a place or freely egress from is a protected and guaranteed right and is it is considered as important aspect of a person’s liberty. However, Pakistan has faced military regimes where fundamental rights were abridged and such Ordinances were sledgehammered that were used for political victimisation. One of such law is “Exit from Pakistan (Control) Ordinance, 1981.” This law gives wide and arbitrary powers to the federal government to prohibit any person from leaving Pakistan. Section 2 of the said Ordinance provides that:
- Federal government has authority to prohibit any person from proceeding from Pakistan even if such a person has valid travel documents
- Against the prohibition order, federal government is not obliged to give an opportunity of showing cause as to why such prohibition is made
- Lastly, federal government is also not duty bound to specify the grounds on which such prohibition is made.
Section 3 of the said ordinance provides that any aggrieved person may file a review against his prohibition order to the federal government. The Ordinance further provides that whoever contravenes or conspires or abets to contravene the said order shall be punishable for a term of imprisonment which may extend to 5 years.
The ECL law is in sheer violation of not only the Constitution and International Covenants but it is also in contradictory to the principles of natural justice. In a Just Society, the law of the land is supplemented by “Jus Natural that is the principles of natural justice. It is a well settled principle of law that rules of natural justice are essence of fair adjudication and they are so fundamental that if they are not provided then one cannot prevent the miscarriage of justice.
The very first principle of natural justice provides that “Nobody shall be a judge in his own cause or the cause in which he is interested.” This principle also known as ‘doctrine of bias’ provides that when a person who has to carry out an official policy is also entrusted with the duty of hearing objections on that policy, then he cannot impartially administer justice.
The ECL ordinance clearly provides that where a federal government has made a prohibition order, the aggrieved party can file a review to the same government that is to the same people who have actually for the very first time has placed his name on ECL. Thus, the remedy provided in the law is also in contradiction to the fair and just principles of natural justice.
Similarly, another principle of natural justice provides that “No one should be condemned unheard” which means that it is necessary for a fair hearing that all parties are heard. The provision of ECL is prima facie in violation of this basic principle as it clearly provides that federal government is not obligated to provide any opportunity of showing cause as why such order or on what grounds it has been made.
Last year, the incumbent government of Pakistan told Senate that nearly 1100 people have been placed on the ECL between year 2015-2018 and around 3000 people were removed from that list. This shows that where the individuals take the matter to the superior courts, in majority of the cases the court accepts their pleas as the government fails to show any reasonable reason to bar them from leaving the country. A recent report of Senate Standing Committee on Interior also observed that the government uses this law as a tool to witch hunt its political opponents and in some cases individuals came to know at eleventh hour at the airport that their names have been placed on the no-fly list.
The Committee also observed that it is unfortunate and unfair that citizen’s names are included just because of a simple inquiry by law enforcement agencies without any Court order to that effect. In fact, in Farooq Saleh Chohan & Other v/s Government of Pakistan & others, the court observed that: “Invariably in all cases on the subject it is noted that such persons are taken by surprise, and invariably in almost all the reported cases on the subject, it appears that persons are informed at the immigration counter that they cannot travel being on the restrictive list or are off loaded unceremoniously causing grave humiliation, causing severe mental torture, anguish beside causing financial loss and loss of opportunity which at times may not be compensated in terms of money.”
The grounds to prohibit any person from Pakistan under ECL Rules, 2010 includes corruption, misuse of authority, economic crimes, acts of terrorism or cases of tax default to name a few. The pertinent thing to note here is that all these grounds mentioned above fall under the ambit of many special laws which can restrict the movement of a person. For example, there is Anti-Terrorism Act 1997, NAB Ordinance 1999, Income Tax Ordinance 2001 and many others which can prosecute the persons committing the crimes mentioned in the ECL rules.
So the question is why federal government has taken upon itself to restrict the movement of citizens which can be done by other authorities with the permission of the Courts. Moreover, the government has so much on its platter in terms of deliverance but it is indulged in matters of prohibiting its citizens from free movement, that too, without any reasonable justification.
The proponent of this law provides that all other states have also such laws where they prohibit and restrict movement of their nationals and there is no thing unjust about it. They further provide an argument that even Article 12, of International Covenant on Civil & Political Rights (ICCPR) provides restriction on freedom of movement. However, they do not take into account that the general comment on Article 12 of ICCPR adopted by human rights committee provides that the restriction mentioned in the article must not impair the essence of the right. The comments further provide that, “The laws authorizing the application of restriction should use precise criteria and may not confer unfettered discretion on those charged with their execution.” Furthermore, the proponents of this law miss one thing in this whole scenario that “Cabinet” meetings of governments around the globe have not resorted to itself this arbitrary power. For example, travel bans or movement restriction in UAE is imposed by public prosecutor for ongoing investigation, by order of criminal court or by a Minister for those who default in payment of debts to UAE government.
In Australia, the Minister for Foreign Affairs and Trade may prevent a person from leaving Australia in certain circumstances but only in serious crimes where arrest warrant is issued or where a person is likely to engage in harmful activity. In India, The Punjab and Haryana High Court has held that the courts hearing criminal cases cannot order surrender of passport as condition for granting bail and impounding of passports lie only with the passport authority. But the case of Pakistan is such that a person with valid travel documents can be denied to travel abroad and his basic fundamental right is curtailed by the very government which he elects.
Majority court precedents show that judges reverse federal government’s decision of placing an individual’s name on ECL and also question the legality of the said Ordinance. In Wajid Shams ul Hasan v/s Federation of Pakistan, Justice Fakir Muhammad Khokhar observed:
“The right to travel is one of the most valued and cherished fundamental human rights in all civilized societies perhaps next only in importance to the rights to life and liberty. Denial of the right to travel, like the deprivation of the right to personal liberty, would put an end or substantially abridge several of the other rights of the individual. Consequently, the need for the guarantee of the right to travel has been recognized from early times. Indeed the discovery of the new world in the fifteen, sixteen and seventeen centuries would not have been possible but for the exercise of the right to travel….”
Not only the courts recognized this right as fundamental but also provided that ECL Ordinance is discriminatory. In the same judgement Fakir Khokhar J. observed: “the provisions of law are, therefore, ex-facie discriminatory and also capable of being administered in a discriminatory manner…. Prima facie, it may be difficult to sustain the validity of the Ordinance on the touchstones of articles 2A, 4, 9 and 25 of the Constitution of the Islamic Republic of Pakistan, 1973….”
In Mehtab Ahmed v/s Federation of Pakistan, the court observed: “the power conferred upon the federal government should not be exercised wildly, arbitrarily or capriciously but should be exercised in accordance with the constitution. Such absolute powers if vested with the government are to be examined with caution and care and judicious application of mind……..the mere apprehension that the citizen may be involved in any criminal activity is not sufficient to place his name on the Exit Control List (ECL) and deprive him from his fundamental right to liberty inclusive of the right to travel abroad.”
Even the Supreme Court of Pakistan dismissed the appeal of federal government regarding the retaining of name of Gen. (R) Musharraf in ECL who was accused of High Treason. This means that even in cases where a person is accused of the most severe crime of abrogating the Constitution thereby committing high treason, the court did not see fit to restrict his movement of as he required medical assistance. In recent times, it has been seen that the incumbent government use this very law to cause mental torture to its political opponents. Even if we believe that the government has nothing to do with the political victimization of its opponent then why don’t we see the names of those who are involved in wheat/sugar scandal on ECL? One of the most prominent member of the ruling party, Jahangir Tareen was facing inquiry by the government but he did fly to United Kingdom.
In a parliamentary democracy, laws should be made by the chosen representatives of the people through debates and its in-depth provision wise analysis. Since promulgation of ECL Ordinance by a military dictator a period of 40 years has lapsed and therefore, it is time to make amendments in the said Ordinance. This will be a step in enforcing due-process of law and will help in reigniting the democratic norms and traditions which unfortunately have been long deserted by the state.