Daily Times

Much excitement has been created in Pakistan — not that we are ever short of exciting news in this part of the world, barring a few occasional lulls though — by what is now popularly being referred to as the ‘Memogate’ scandal. While the president seems to have fallen ill suddenly and had to proceed abroad on an emergency basis, the former ambassador to the US, Mr Husain Haqqani, has been restrained by the honourable Supreme Court of Pakistan from leaving the country.

The honourable Supreme Court while forming a commission to hold a probe into the ‘Memogate’ issue, in a petition filed before it stated: “We may also observe here that no sooner the issue of memorandum came to limelight, the former ambassador of Pakistan tendered his resignation. We do not want to attribute to him anything adverse about his involvement and he is entitled to due respect. But we desire that he should fully cooperate with the commission and during the pendency of the cases before this court, he would not be leaving the country without prior permission of this court. This order should be communicated to the secretaries of the Ministries of Interior and Foreign Affairs with the direction that if Mr Husain Haqqani violates the terms of this order and goes abroad, they shall be held personally responsible.”

The Exit from Pakistan (Control) Ordinance came into force in 1981. It is amazing that despite the fact that almost 30 odd years had passed since its promulgation, no rules as stipulated in the ordinance were framed. Last year, the honourable Supreme Court directed the government to frame the relevant rules. The law grants power to the federal government to prohibit a person from leaving Pakistan notwithstanding the fact that he may have valid travel documents. Originally, the law did not afford an opportunity of showing cause to the person against whom such an order was made and the government was also not obliged to specify the reason for such an order on the pretext of ‘public interest’.

In April 1998, an amendment was made in the ordinance and the federal government was obliged by law to afford a reasonable opportunity to show cause to the person against whom it intended to issue an order of prohibition to exit Pakistan. The law also now binds the federal government to immediately deliver a copy of the order to the person against whom it is made, whereby he is prohibited from leaving Pakistan, along with the grounds for making such an order.

The ordinance whilst providing the aggrieved person with a remedy of filing a representation, seeking review of the order of prohibition, further stipulated that the final order passed by the federal government will not be open to judicial scrutiny.

The Interior Ministry of Pakistan is responsible for the administration of entry and exit of persons to and from Pakistan and also for the prevention of unwanted persons to enter into the country. Immigration monitoring is the domain of the Federal Investigation Agency (FIA), which set up Personal Identification Secure Comparison and Evaluation System (PISCES) a few years ago. PISCES keeps a record of all entries and exits from Pakistan and aims to eliminate terrorism, human smuggling and other crimes by enhancing the tracking capacity of the FIA in respect of any individual travelling to and from Pakistan. Needless to say, no one can enter or exit Pakistan without the approval of the FIA.

The right to travel has been equated with the fundamental right to life by our honourable Supreme Court. It has been held that, “By reading the provisions of Article 4, 9 and 15, it is manifest that every citizen has the liberty to go abroad and to re-enter Pakistan unless he is precluded from doing so under some law made in the public interest…Undoubtedly, to travel abroad could be barred if it was shown that the applicant was going abroad to meet the enemies of the country and his foreign visit could endanger the security of the state or was against the public interest.”

The federal government, in a hearing before the honourable Supreme Court of Pakistan, in Dr Abdul Qadeer Khan’s case, stated that those involved in mass corruption and misuse of power or authority, causing loss to the government funds or property would be placed on the Exit Control List (ECL), as per the criteria currently in force. Also included in the list would be the names of government employees involved in economic crimes that pertain to embezzlement of huge governmental funds, institutional frauds as well as those of “hardened criminals involved in acts of terrorism, conspiracy, heinous crimes and threatening national security”.

The courts, in appropriate cases, also direct the federal government to place the names of probable absconders on the ECL. Sometimes in sensitive custody cases, the names of minor children are also put on the ECL to prevent their unlawful removal from the territorial jurisdiction of Pakistan. But despite such measures people still manage to escape with minor children; the case of Sofia Mirza is one such example, where her ex-husband managed to flee the country with their twin daughters. It is rumoured that a new passport, on urgent basis, available the same day, costs Rs 45,000 and is geared specifically to aiding people to take off from Pakistan. It is apparent that any person who manages to escape the country in spite of his name being on the ECL cannot do it without insider help.

I am of the firm view that no law or act should be immune from judicial scrutiny as the people of Pakistan are already oppressed by the whimsical, illegal and sometimes mala fide actions of the executive. The courts are the custodians of the people’s rights; without them there would be no constitutional guarantees. Including Mr Haqqani’s name in the ECL is in the national interest right now, given the sensitivity of the matter. As the honourable Supreme Court aptly observed, “Under Article 5 of the constitution, it is the basic duty of every citizen to be loyal to the state and to be obedient to the constitution and law, being inviolable obligation wherever he may be and of every other person for the time being within Pakistan.”

It may turn out that the ‘Memogate’ scandal is for our reportedly ailing president what ‘Watergate’ turned out to be for Richard Nixon. As Aesop said, “Affairs are easier of entrance than of exit; and it is but common prudence to see our way out before we venture in.” Maybe it is time to teach ‘common prudence’ and regulate the ‘entrance’ instead of prohibiting the ‘exit’!

The writer is an advocate of the High Court