It is hard to make sense of the political and legal happenings in Pakistan. Especially, as these relate to the ongoing corruption cases against the Sharif family, and the Bhutto/Zardari Benami empire.
The latest episode, in this endless saga of partisan legal battles, involves the controversy concerning allowing Nawaz Sharif to proceed abroad with or without providing a surety bond, as required by the Federal Government. This menial issue, of providing surety for allowing Nawaz Sharif to proceed abroad, has consumed all political debate and discussion, across our nation, this week.
Let us investigate this issue, in light of the applicable law and available precedents.
The statutory law governing prohibition on exiting the territorial jurisdiction of Pakistan is the Exit From Pakistan (Control) Ordinance, 1981. Specifically, section 2 of the 1981 Ordinance empowers the “Federal Government” to “prohibit any person or class of persons from proceeding from Pakistan to a destination outside Pakistan, notwithstanding the fact that such person is in possession of valid travel documents.” In other words, the Federal Government (acting through the Cabinet), can legally prevent a person from exiting the territorial jurisdiction of Pakistan, if sufficient justification for the same exists. In this regard, per section 2 of the 1981 Ordinance, it “shall not be necessary” for the Federal Government “to afford an opportunity of showing cause to the person” concerned, or to “specify such grounds” on which the order has been made.
The references were tried, at length, under the auspices of the honorable Supreme Court itself, and Nawaz Sharif was convicted in two (out of three) references
Per section 3 of the 1981 Ordinance, against such prohibitory order of the Federal Government, an aggrieved person may “make a representation to the Federal Government for a review of the order”. Upon receipt of such representation, the “Federal Government may, after giving the person making a representation an opportunity of being heard, make such order as it may deem fit.” For our purposes, the important phrase in this provision is “as it may deem fit”. Put another way, the Federal Government may stipulate such caveats ‘as it deems fit’, for placing or removing a person from the Exit Control List (ECL).
Section 5 of the 1981 Ordinance allows the Federal Government to make rules under this law. And in the exercise of this rule-making power, the (then PPP) government framed the Exit from Pakistan (Control) Rules, 2010. These rules provide a little more clarity on the category of people who may be placed on the ECL. Specifically, per Rule 2 of the 2010 Rules, the Federal Government may “prohibit any person from proceeding from Pakistan to a destination outside Pakistan”, if such person has been involved in, inter alia, “terrorism”, “economic crimes”, or “corruption and misuse of power or authority causing loss to the government’ funds or property”.
With this legal paradigm in place, let us turn to the facts of Nawaz Sharif’s case.
In the aftermath of the Panama case and its resulting JIT, it was discovered that Nawaz Sharif and his family members had off-shore assets that were not duly disclosed under the law. It was also discovered that prima facie, Nawaz Sharif’s assets were not commensurate with his declared sources of income, as a result of which, the National Accountability Bureau filed references against the former premier and his family members. The references were tried, at length, under the auspices of the honorable Supreme Court itself, and Nawaz Sharif was convicted in two (out of three) references.
Subsequently, during the pendency of his appeal against conviction (in the Avenfield reference), the honorable Islamabad High Court suspended the sentence (not the conviction) awarded to Nawaz Sharif, allowing him to be released on bail. During this time, it was feared by the Federal Government that Nawaz Sharif might leave the country and not return to face the ongoing legal proceedings – much like two sons, and Ishaaq Dar. As a result, Nawaz Sharif’s name was placed on the Exit Control list of Pakistan, preventing him from traveling abroad.
Fast-forward a year. Nawaz Sharif’s health deteriorated in incarceration. During this time, another investigation, concerning Chaudhary Sugar Mills, had also commenced against Nawaz Sharif in NAB Lahore. And, as a result, Nawaz Sharif was under investigation in at least one case in Lahore, while being convicted in two others in Islamabad. In the circumstances, Nawaz Sharif applied for bail, on health grounds, before the honorable Islamabad High Court as well as the honorable Lahore High Court. He was granted bail in both instances. However, the judicial orders did not provide clarity about Nawaz Sharif’s exit from Pakistan. Specifically, the honorable Lahore High Court allowed Nawaz Sharif to proceed abroad if required, because he was merely ‘accused’ (not convicted) in any case before the Lahore High Court. However, the Islamabad High Court’s order did include any such permission to proceed abroad, because Nawaz Sharif was a ‘convict’ and not an ‘accused’.
In the circumstances, the Federal Government chose not to remove Nawaz Sharif’s name from ECL, prompting Shehbaz Sharif to make an application to the government for removal of Nawaz Sharif’s name from this list. In response, after detailed deliberation in the Cabinet, the Federal Government stipulated that Nawaz Sharif is allowed to leave Pakistan, subject to furnishing a surety bond equivalent to the amount for which Nawaz Sharif has been convicted. Primarily, in arriving at this decision, the Federal Government placed reliance on the legal provision (section 3 of the 1981 Ordinance), which allows the government to make such order “as it deems fit” in the circumstances.
It is hoped that Nawaz Sharif gets better soon, and fulfils his promise to return, made before the honorable Lahore High Court
Representatives of the Federal Government argued that, while they appreciate Nawaz Sharif’s need to go abroad for health reasons, they have no faith that he will return when called upon by our law enforcement agencies and the court. They referred to the fact that at least five members of Nawaz Sharif’s family – Hassan Nawaz, Hussain Nawaz, Ishaaq Dar, Suleman Shehbaz, and Ali Imran – have all absconded from Pakistan and not returned, despite court orders. In the circumstances, they argued that Nawaz Sharif cannot be trusted to return to Pakistan. Also, it was argued that in the absence of Nawaz Sharif in Pakistan, none of the investigations or references against him would proceed, bringing the accountability proceedings drive to a halt.
PML(N) decided to challenge this decision of the Federal Government before the honorable Lahore High Court, which was heard on Saturday (as a special urgency case).
The honorable Court, throughout the day, tried to arrive a mutually agreeable solution between the Federal Government and PML(N). However, the Federal Government insisted that Nawaz Sharif must provide a financial guarantee before leaving Pakistan, whereas PML(N) vociferously objected to it. In the circumstances, when no mutual agreement could be reached between the parties, the honorable Lahore High Court sided with PML(N)’s contention and (as reported) allowed Nawaz Sharif to proceed abroad without any financial commitment or guarantee.
So now, as the situation stands, Nawaz Sharif’s eventual return to Pakistan and the future of his accountability cases, rests with the honorable Court. The government wanted a guarantee. The court did not require one, placing faith in Nawaz Sharif’s word that he will return. In effect, the honorable Court will be burdened with the entire responsibility and future of Nawaz Sharif’s cases.
This is a reasonable judgment. And it should be received as such. It is hoped that Nawaz Sharif gets better soon and fulfills his promise to return, made before the honorable Lahore High Court. And if for some reason, he does not fulfill this promise, the people of Pakistan will surely look towards the courts, and not Imran Khan, to vindicate the process of law.
Saad Rasool is a lawyer based in Lahore. He has an LL.M. in Constitutional Law from Harvard Law School. He can be reached at firstname.lastname@example.org, or Twitter: @Ch_SaadRasool. This article originally appeared at The Nation and has been republished with the author’s permission. The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.