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Retrieving untaxed/ill-gotten assets

Huzaima Bukhari & Dr. Ikramul Haq

In the Supreme Court of Pakistan, Suo Motu Case No. 2 of 2018 re ‘Maintaining of Foreign Accounts by Pakistani Citizens Without Disclosing the Same/Paying Taxes’, is still pending for adjudication. It started on February 1, 2018 and after many hearings, appointing of committees and seeking assistance from a number of leading lawyers and experts in fiscal, business and finance, remains unconcluded till today. The last hearing in this case was held on January 14, 2019 as per website of Supreme Court of Pakistan.

The purpose of suo motu case [see order dated June 12, 2018 reported as PLD 2018 Supreme Court 686] was retrieving looted wealth and untaxed assets stashed abroad, exposing and punishing the culprits. On the contrary, the culprits were offered unprecedented immunities and amnesties and assured complete confidentiality through unconstitutional laws, first by the government of Pakistan Muslims League (Nawaz)—[PMLN] and then by the coalition Government of Pakistan Tehreek-i-Insaf (PTI). Though these laws were ultra vires of the Constitution of the Islamic Republic of Pakistan, 1973 [“the Constitution”] on many grounds and were promulgated during the pendency of Suo Motu Case No. 2 of 2018 and Constitution Petition No.72 of 2011, filed by Muhammad Ali Durrani, ex-Minister and former Senator, attached with it, involving many common issues, no action is taken till today.

The Apex Court in Suo Motu Case No. 2 of 2018 noted: It has been common knowledge for years that a large number of Pakistani citizens, who are residents of Pakistan and are maintaining accounts in foreign countries without disclosing the same to the authorities competent under the laws of Pakistan or paying taxes on the same in accordance with law. Prima facie, it appears that such money is siphoned off without the payment of taxes through illegal channels and represents either ill-gotten gains or kickbacks from public contracts. Such money creates gross disproportion, inequality and disparity in the society, which warps economic activity and growth, and constitutes plunder and theft of national wealth”.

The policy of appeasementtowards corrupt practice, looting and plundering of national wealth, spread over the last many decades, has culminated in the syndrome of defeatism that “nothing can be done”, hence amnesties! In other words defeatism as mindset has developed as nation syndrome—where the beneficiaries of tainted money successfully shift the entire blame on weak administration and existing laws. The question arises that when there are glaring inactions why corrective and remedial measures have not been taken? For example in the case of Nawaz Sharif and Asif Ali Zardari, and many others, the much-needed action of freezing assets under section 12 of the National Accountability Ordinance, 1999 (NAB Ordinance) is not taken.

The nation wants looted wealth back, not just putting the looters behind bars and later allowed to be released on bail or even go abroad for medical treatment. Nothing has been done on the front of retrieving untaxed and/or looted wealth for which Suo Motu Case No. 2 of 2018 was initiated more than two years ago. In cases of financial crimes, the real issue is retrieval of looted money and tax on untaxed assets. This has not been done even in a case despite the Supreme Court asked for action against the Attorney General in 2010 for withdrawal of Pakistan’s claim of US$ 60 million in para 177 to 179 of the case reported as Dr. Mobashir Hassan and other v FOP and others PLD 2010 SC 265. Tragically, even after even after 19 years the order remains unimplemented.

In the changed world scenario, many countries are exchanging information and taking stringent measures against tax evasion, plundering of national wealth, looting public funds, corruption, money laundering, terrorist financing. Unfortunately, even after establishing Special Asset Recovery Unit (ARU) by Prime Minister, working since October 2018, no amount is repatriated till today. On the contrary, asset whitening schemes were offered causing loss of billions to national exchequer. It may be recalled that while addressing a Press conference on October 4, 2018, Special Assistant to Prime Minister on Accountability, claimed that details of more than 10,000 properties owned by Pakistanis were traced in Dubai and England and declared it “a huge success”. He said:  “We have formed a task force which will ensure the money sent abroad is brought back“. He said that assets detected could be divided into two categories; belonging to public officeholders and common citizens. Special Assistant to Prime Minister on Accountability has now added responsibility of Interior Ministry, in addition to Chief of ARU that works directly under Prime Minister of Pakistan. 

It is high time that we should take concrete measures for recovering looted wealth of the nation rather than lamenting over our past mistakes. While many countries have regularized the past through bilateral agreements, multilateral initiatives and seeking help of specialized agencies, we are still debating on how to further succumb to those who have consistently violated laws of the land, created assets beyond their own means and have always escaped punishment taking refuge under anti-people laws and/or frequent amnesties.

Quite shockingly, during the pendency of Suo Moto Case No. 2 of 2018, two laws—Foreign Assets (Declaration and Repatriation) Ordinance, 2018 and Voluntary Declaration of Domestic Assets Ordinance, 2018—were promulgated through Presidential Ordinances on April 8, 2018 and later passed by the National Assembly as Money Bill in Finance Act, 2018. The Government of Pakistan Muslim League (Nawaz)—PMLN—got Foreign Assets (Declaration and Repatriation) Act, 2018 and Voluntary Declaration of Domestic Assets Act, 2018 passed as part of Finance Act, 2018. All these laws, assuring complete confidentiality to tax evaders and plunderers of national wealth, could not be passed as Money Bill but was blatantly done so by the National Assembly in utter violation of the Constitution and judgements of the Supreme Court, namely, Workers Welfare Funds m/o Human Resources Development, Islamabad through Secretary and others v East Pakistan Chrome Tannery (Pvt.) Ltd through its GM (Finance), Lahore etc. and others [(2016) 114 TAX 385 (S.C. Pak.)], Mir Muhammad Idris v FOP PLD 2011 SC 213 and Sindh High Court Bar v FOP PLD 2009 SC 789. Tragically, our civil society also did not bother to challenge these under Article 199 of the Constitution on the basis of above cases and/or invoking Article 189 of the Constitution. Both these schemes fetched 82,889 declarations and tax amount of Rs. 124 billion (domestic Rs. 77 billion and foreign Rs. 47 billion), though the then Adviser to Prime Minister on Revenue, Haroon Akhtar, claimed that collection would not be less than US$ 5 billion for foreign assets alone.

No political party representing Opposition in Parliament even mentioned it being unconstitutional in the light of and in clear violation of the judgement of Supreme Court [(2016) 114 TAX 385 (S.C. Pak.)] which says:

We may develop this point further; although Article 73(3)(a) of the Constitution states that a Bill shall not be a Money Bill if it provides for the imposition or alteration of a fee or charge for any service rendered, this does not mean that if a particular levy/contribution does not fall within Article 73(2) it must necessarily fall within Article 73(3). Sub-articles (2) and (3) are not mutually exclusive. There may very well be certain levies/contributions that do not fall within the purview of Article 73(3) but still do not qualify the test of Article 73(2) and therefore cannot be introduced by way of a Money Bill, and instead have to follow the regular legislative procedure. The discussion above that the subject contributions/payments do not constitute a tax is sufficient to hold that any amendments to the provisions of the Ordinance of 1971, the Act of 1976, the Act of 1923, the Ordinance of 1968, the Act of 1968 and the Ordinance of 1969 could not have been lawfully made through a Money Bill, i.e. the Finance Acts of 2006 and 2008, as the amendments did not fall within the purview of the provisions of Article 73(2) of the Constitution”. 

The above judgement of the Supreme Court approved the brilliant discourse and conclusion on Money Bill by the illustrious Justice Mansoor Ali Shah (then Chief Justice Lahore High Court and later elevated to Supreme Court) in 2011 PTD 2643as under:

The special legislative procedure is, therefore, an exception and must operate in its restricted scope. Being a special procedure it also has to be construed strictly as it is a deviation from the normal legislative process under the Constitution. Integrity of a money bill must be jealously guarded and matters falling outside the purview of Articles 73(2)(a) to (g) of the Constitution should not be permitted to stealthily crawl into a money bill (at times due to political sophistry of the Government in power) -and adulterate its sanctity”.

The coalition Government of Pakistan Tehreek-i-Insaf (PTI) also followed its predecessor PMLN and announced asset/income/expenditure whitening scheme—Assets Declaration Ordinance, 2019 through a Presidential Ordinance on May 14, 2019, which was later made part of Finance Act, 2019 as Money Bill again in violation of Constitution and binding judgement of Supreme Court under Article 189 of the Constitution as explained above. The scheme gave generous incentives to those who had not been paying their taxes honestly, concealing and/or understating assets/incomes/sales/expenses and cheating the State.

In the Foreign Assets (Declaration and Repatriation) Ordinance, 2018, benefit of whitening undeclared assets situated outside Pakistan was extended to all citizens of Pakistan, including those holding public office prior to 1st day of January 2000 which was in utter violation of dictum laid down by Supreme Court in the case of Dr. Mobashir Hassan and other v FOP and others PLD 2010 SC 265. The same was the case with assets inside Pakistan covered under Voluntary Declaration of Domestic Assets Ordinance, 2018 and Assets Declaration Ordinance, 2019 promulgated by PTI Government, made an Act of Parliament through Finance Act 2019 and received the assent of the President on June 30, 2019.

The gross violation of the Constitution, supreme law of the land, was committed by allowing persons holding public office holders prior to January 1, 2000 to avail the asset whitening schemes. It amounts to sanctifying assets created out of corrupt practices by public officeholders.

Section 13 of Foreign Assets (Declaration and Repatriation) Ordinance, 2018 says: Notwithstanding the provisions of sub-section (3) of section 216 of the Income Tax Ordinance, 2001 (XLIX of 2001), the Right of Access to Information Act, 2017 (XXXIV of 2017) and any other law for the time being in force, particulars of any person making a declaration under this Ordinance or any information received in any declaration made under this Ordinance shall be confidential. Similar confidentiality was extended by the PTI Government in Assets Declaration Ordinance, 2019.

The above quoted section 13 of Foreign Assets (Declaration and Repatriation) Ordinance, 2018 was against Article 19A of the Constitution of Pakistan, which says: “Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law”. It also violated the dictum laid down by Supreme Court in Watan Party & Others v Federation of Pakistan & Other [PLD 2012 SC 292] as under:

“Article 19A has thus, enabled every citizen to become independent of power centres which, heretofore, have been in the control of information on matters of public importance….. Article 19A is a grant of the Constitution and, therefore, cannot be altered or abridged by a law enacted by Parliament…It, therefore, will not for this Court to deny to the citizens their guaranteed fundamental right under Article 19A by limiting or trivializing the scope of such right through an elitist construction whereby information remains the preserve of those who exercise state power.”

Section 13 of Foreign Assets (Declaration and Repatriation) Ordinance, 2018 also nullifies section 4(2) of Foreign Assets (Declaration and Repatriation) Ordinance, 2018 which says: The provisions of this Ordinance shall not apply to any proceeds or assets that are involved in or derived from the commission of a criminal offence.

In the presence of complete and absolute confidentiality, authorities investigating proceeds of crime and corruption became powerless, helpless and non-functional in punishing the offenders. The same position prevailed for Voluntary Declaration of Domestic Assets Ordinance, 2018 vide its section 11 and PTI’s Assets Declaration Ordinance, 2019.

Through Foreign Assets (Declaration and Repatriation) Ordinance, 2018, Voluntary Declaration of Domestic Assets Ordinance, 2018 and Assets Declaration Ordinance, 2019,political elite under the garb of democracy (sham) successfully protected the plunderers of national wealth and tax evaders and has now made the National Accountability Bureau (NAB) also toothless through National Accountability (Amendment) Ordinance, 2019.

The PTI Government instead of retrieving the huge financial losses caused to national exchequer, offered unprecedented concessions and immunities to ‘Thieves of State’ as was done by PMLN. By paying just peanuts they are now keeping the assets with them inside and outside Pakistan. Even the “whitened assets” located inside country were later transferred outside Pakistan as no amendment was made in Protection of Economic Reforms Act, 1992 and Foreign Currency (Protection) Ordinance, 2001 to check unregulated outflows that are in billions of dollars every year.

The Governor State Bank of Pakistan may be directed by the Supreme Court in pending case [Suo Muto Case No. 2 of 2018] to give details of outflows since 1992 from Foreign Currency Accounts, exceeding US$30,000 by a single person/entity per year, other than those related to education and health expenses and for bona fide business after following the prescribed rules and seeking approval, as the case may be.

According to a Press report [The Express Tribune, July 30, 2015] an investment of US$75 million was made by a local group in London and on inquiry by Senate Standing Committee the State Bank of Pakistan informed that it was authorised to give permission to invest up to $5 million abroad, while the Economic Coordination Committee (ECC) of the Cabinet gives approval for making investments above that threshold. The Governor State Bank told the Committee that he did not have information about whether the group obtained ECC’s approval or not. This case of transfer of assets abroad is now closed after National Accountability (Amendment) Ordinance, 2019 as Shabbar Zaidi was their adviser before taking charge of Chairman of FBR.

The National Accountability (Amendment) Ordinance, 2019 provides that the NAB can now only proceed in corruption cases of Rs 500 million and more. Additionally, its jurisdiction over matters relating to tax, bank loans, stock etc has been curtailed. The Federal Bureau of Investigation (FIA), Securities and Exchange Commission of Pakistan (FIA) and Federal Board of Revenue (FBR) are assigned the exclusive jurisdiction in all such matters. Even before the promulgation of National Accountability (Amendment) Ordinance, 2019, there was a statement by the Chairman of NAB on October 6, 2019 that none of Bureau’s officials would call any businessman directly for questioning unless the matter is referred to NAB by FBR or any other tax agency. It obviously made both the dishonest tax officials and unscrupulous tax advisers/taxpayers jubilant. Not only FBR but the officers of other departments where unholy alliance of law-keepers and law-breakers exist showed “satisfaction” that ultimately they had managed to convince the Prime Minister that NAB was the root cause of all troubles on economic front! This thinking/policy and National Accountability (Amendment) Ordinance, 2019 needs to be reviewed, especially after recent alleged mega tax fraud cases in FBR causing losses of billions to the national exchequer.

According to another report [Policymakers also benefit from foreign remittances, The News, September 4, 2015], “A senior government official with status of minister of state, who is now aspiring to become head of FBR again [Haroon Akhtar], along with some members of his family, was facing National Accountability Bureau’s inquiry for receiving ‘remittances’ to the tune of Rs700 million. After becoming Adviser to Nawaz Sharif on Revenue, he forced the NAB to drop proceedings and succeeded in it. How a public officeholder could hide the source of such hefty remittance, taking refuge behind the Economic Reform Act, 1992”.

A breakthrough was made by media showing that investment in Dubai alone by Pakistanis during the past ten years was in billions, yet instead of taking actions against the offenders, the Government of PTI also extended asset whitening scheme, the details of which, and earlier schemes of 2018, vis-à-vis loss of revenue are as under:

  1. The Federal Board of Revenue (FBR) on November 7, 2019 confessed before the Standing Committee on Finance & Taxation of National Assembly that governments of PTI and the Pakistan Muslim League-Nawaz (PML-N) in their amnesty schemes of 2018 and 2019, respectively, extended benefit of Rs. 61.4 billion to 191 billionaires who were caught owning undeclared offshore assets. While the FBR did not disclose the names of the beneficiaries (as both the governments of PTI and PML-N provided legal cover to keep names secret of the beneficiaries), it was admitted by Director General of Directorate of International Taxes of the FBR, Muhammad Ashfaq that definite information was available against them under Automatic Exchange of Information (AEOI) initiative of the Organisation for Economic Cooperation and Development (OECD).
    1. As many as 135 persons, named in the OECD database, availed the 2018 tax amnesty scheme of the PML-N and declared Rs. 62.4 billion in assets. They paid only Rs. 2.9 billion. Whereas, their actual liabilities without the tax amnesty could have been Rs. 43.7 billion, getting a relief of Rs. 40.8 billion from the last government. About 56 people, whose data was shared by the OECD, availed the PTI’s tax amnesty scheme and declared Rs. 31.8 billion worth of assets. They paid only Rs. 1.7 billion and got a relief of Rs. 20.6 billion. Of the remaining cases, Muhammad Ashfaq told the Standing Committee that the FBR assessed 115 cases, raised demand of Rs. 4 billion and recovered Rs1 billion. The total tax collection in 325 cases against $ 5.5 billion worth of foreign assets caught by the OECD web was only Rs. 5.6 billion or 0.64% of the traced assets, he added.
    1. Mohammad Ashfaq disclosed that among the beneficiaries were a few politicians but did not qualify in the definition of “office holders” as provided in money whitening schemes! So corruption in their case was legalized after a lapse of 10 years under money whitening schemes even though the National Accountability Bureau Ordinance, 1999 provides otherwise.
    1. The PTI Government earlier had been proudly taking credit that it had received information of around 152,000 bank accounts owned by 57,450 Pakistani nationals, having $7.5 billion in bank deposits. Bulk of this information was received much before PTI came into power. Premier Imran Khan, before giving amnesty on the insistence of many, especially Shabbar Zaidi, Chairman FBR, time and again expressed determination to bring back the looted and untaxed money. Later, he conceded before the forces of loot and plunder.
    1. The tall claims of Imran Khan, especially of reopening the cases of beneficiaries of asset whitening scheme of PML(N) were exposed by Muhammad Ashfaq who told the House Committee of National Assembly that out of 191 persons who availed the 2018 and 2019 asset whitening schemes, tax received by FBR was only Rs. 4.6 billion against declared assets of Rs. 94.2 billion. Thus these 191 people paid on average 4.9% of the value of assets in taxes!!
    1. It was conceded by Chairman FBR that they could have recovered 70% [As per provisions of Income Tax Ordinance 2001 on a concealed asset, there is a maximum income tax of 35% along with 100% penalty, bringing the total tax liability to 70%] of the assets. Tragically, the governments of PTI and PML(N) settled at just 2-4%, remarked Asad Umar, former Finance Minister of the PTI and Chairman of the Standing Committee. He added:This tells why all political parties love to give tax amnesty schemes and also shows the elite capture of Pakistan’s economy and politics”.
    1. The members of the Standing Committee of National Assembly were of the view that the beneficiaries of the schemes illegally took funds abroad. However, Shabbar Zaidi defended them claiming that “$7.5 billion went out through legal channels under the Foreign Currency Accounts Ordinance of 2001 that allows dollar buying from the market and their remittance abroad through bank accounts”. This contention of Shabbar Zaidi was contested by Asad Umar who said: “No individual can buy assets abroad without obtaining permission of SBP of ECC, as the case may be” and added: “I am not talking about your former clients of AF Ferguson, whom you had facilitated for placement of funds abroad with the help of legal lacunas”.
    1. Asad Umar claimed that the stance of State Bank of Pakistan on remitting money abroad without seeking permission was different from that of FBR historically. He was referring to a statement given by Irfan Ali, Director Banking of the State Bank of Pakistan before the Senate’s Standing Committee on Finance and Revenue November 24, 2015 that the Central Bank neither gave any permission nor initiated a case for approval of the Economic Coordination Committee (ECC) to a billionaire for remitting $75 million for the purchase of Saint James’s Hotel in London. Asad Umar once again emphasised that there was a need to shut this door by ending ambiguity.
    1. By yielding to demand of announcing asset-whitening scheme, Prime Minister Imran Khan conveniently forgot his extraordinary speech at ‘High-Level Dialogue on Financing for Development’ at the United Nations in New York on September 26, 2019. There he highlighted the issue of assets stashed in various tax havens by loot and plunder or through tax evasion. He said: “While it is true that illicit financial flows adversely affect wealthy countries, such movement of ill-gotten money is devastating the developing countries across the world”. Imran Khan’s speech was highly appreciated at home and abroad proving his stature as a global leader. He very aptly observed: “I do not think people fully realise the impact it (illicit financial flows) is having in causing poverty, death and destruction in human development in the developing world”—this received a huge round of applause from the audience.
    1. Premier Imran Khan said that “in the last decade Pakistan had a corrupt leadership which took the national debt accumulated over 60 years, up by four times in the last 10 years and most of the money was made out of corruption and sent outside”. In his speech, Imran Khan claimed that after coming into power his government was trying its best to retrieve that money. He lamented that even after locating properties made from illegal money by Pakistanis abroad, “we face a number of legal lacunas and difficulties in trying to bring that money back”.
    1. Mohammad Ashfaq’s and Shabbar Zaidi’s briefing of November 7, 2019 before the Standing Committee of National Assembly clearly establishes that Imran Khan acted diametrically opposite to what he pleaded in respect of bringing looted and untaxed money stashed abroad. This was the worst one could expect from him! He has yet not realized how his advisors let him down by foregoing 70% tax on untaxed assets for which definite information was available through multilateral treaty signed by Pakistan. How could amnesty be given when the department possessed actionable information? In only 56 cases where data was shared by the OECD, due to PTI’s tax amnesty, national exchequer suffered loss of Rs. 20.6 billion. The nation will never forgive him for this lapse which also belies all his claims of bringing tax evaders and looters of national wealth to task. Actions speak louder than words!

The PTI Government due to influence of tax evaders within its own ranks and files showed inability to initiate action against those who created assets abroad through illegal transfer of funds. That it was revealed in a Press report [‘Pakistani cash in Swiss banks pulled out’, The Express Tribune, February 22, 2017] that the Government in response to a question posed by a member in National Assembly that billions of dollars were lying in Swiss banks. That in 2014 after approval of Cabinet a team was sent to Switzerland for re-negotiating Agreement of Avoidance of Double Taxation and Fiscal Avoidance with Switzerland. That according to Press reports, the Swiss Government agreed for exchange of information but the new Agreement inked was frustrated. That the Supreme Court in pending case now must order the production of entire record of re-negotiation of Agreement with Switzerland in 2014 from Federal Board of Revenue and summon the person who inked the Agreement to explain why the same was not honoured. This would surely reveal the hidden facts and failure till today of not retrieving money from Switzerland while many countries e.g. United Kingdom, USA, Germany and Italy successfully did so—agreements to this effect are available.

Way back in 2013, the Senate of Pakistan in its recommendations to National Assembly for improving Finance Bill 2013-14 specifically emphasised the need for a law that could enable State Bank of Pakistan to obtain details about money held by Pakistanis in overseas accounts. The National Assembly that alone has power to pass Money Bill under the Constitution did not pay any heed to it. After five years, the issue was taken up by Supreme Court in Suo Motu Case No. 2 of 2018, which is still pending.

Perpetual inaction on the part of the State to remove protective laws [Protection of Economic Reforms Act, 1992 and Foreign Currency (Protection) Ordinance, 2001], even after Panama, Bahamas and Paradise Papers, is highly lamentable as country is bleeding heavily due to such laws that allow unchecked outflows.

Many politicians and government servants in the past obtained dual nationality and parked assets abroad through trusts, offshore companies and benamidars. That till today no serious effort is made to seek information about their assets stashed abroad with the help of foreign governments and international agencies. Then shockingly in Foreign Assets (Declaration and Repatriation) Ordinance, 2018, Voluntary Declaration of Domestic Assets Ordinance, 2018 [became Act in Finance Act 2018] and Assets Declaration Ordinance, 2019 [became Act in Finance Act 2019] those who held public office prior to 1st January 2000 were allowed to avail the amnesty schemes.

The framing of policies is the prerogative of the government but the supreme law of the land, in unequivocal terms binds the parliament and the government not to make any law/policy that is repugnant to basic rights of the citizens. The data regarding stashing of assets abroad or even within Pakistan, created out of untaxed/undeclared resources is not an issue. It is either available or can easily be obtained. What is lacking is the conviction to retrieve the same and nothing else.

The successive governments, fully aware of the fact that majority of the offshore companies of Pakistanis were registered in British Virgin Islands (BVI), yet did not take any initiative to sign a Tax Information Exchange Agreement (TIEA) with BVI similar to the one signed by India way back in 2011. Till today, no effort has been made for invoking Swiss law (Foreign Illicit Assets Act (FIAA) of 18 December 2015) for return of proceeds of kickbacks lying in Switzerland about which an order of the Supreme Court [Para 177 to 179] of Dr. Mobashir Hassan and other v FOP and others PLD 2010 SC 265] exists

The Supreme Court in Suo Motu Case No. 2 of 2018, which is still pending, may consider the following:

  1. The issue is not merely whether the Government and Parliament are making the necessary effort to bring back all or some significant part of the stashed assets. The fact that there is some information and knowledge that such vast amounts may have been stashed away in foreign banks, implies that the State has the primordial responsibility, under the Constitution, to make every effort to trace the sources of such assets, punish the guilty where such assets have been generated and/or taken abroad through unlawful activities, and bring back the assets owed to the Country.
    1. The degree of success, measured in terms of the amounts of assets brought back, is dependent on a number of factors, including aspects that relate to international political economy and relations, which may or may not be under our control. The fact remains that with respect to those factors that were within the powers of our State such as investigation of possible criminal nexus, threats to national security etc., were not even attempted.
    1. Fealty to the Constitution is not a matter of mere material success; but, and probably more importantly from the perspective of moral authority of the State, a matter of integrity of effort in all the dimensions that inform a problem that threatens the constitutional projects. Further, the degree of seriousness with which efforts are made with respect to those various dimensions can also be expected to bear fruit in terms of building capacities, and the development of necessary attitudes to take the law enforcement part of accounting or following the money seriously in the future.
    1. The merits of vigour of investigations, and attempts at law enforcement, cannot be measured merely on the scale of what we accomplish with respect to what has happened in the past. It would necessarily also have to be appreciated from the benefits that are likely to accrue to the country in preventing such activities in the future. Our people may be poor, and may be suffering from all manner of deprivation. However, the same poor and suffering masses are rich, morally and from a humanistic point of view. Their forbearance of the many foibles and failures of those who wield power, no less in their name and on their behalf than of the rich and the empowered, is itself indicative of their great qualities, of humanity, trust and tolerance. That greatness can only be matched by exercise of every sinew, and every resource, in the broad goal of our constitutional project of bringing to their lives dignity. The efforts that Supreme Court makes in this regard, and will make in this respect and these matters, can only be conceived as a small and minor, though nevertheless necessary part. Ultimately the protection of the Constitution and striving to promote its vision and values is an elemental mode of service to our people.
    1. The Supreme Court of India while adjudicating the same issue in Ram Jethmalani & Others v Union of India and Others (2008) 8 SCC 1held as under:   “……in many instances, in the past, when issues referred to the Court have been very complex in nature, and yet required the intervention of the Court, Special Investigation Teams have been ordered and constituted in order to enable the Court, and the Union of India and/or other organs of the State, to fulfill their constitutional obligations”.
    1. A Special Investigation Team, headed by a retired Judge of Supreme Court or a General who worked in NAB, or anyone else whose competent enough may be constituted and charged with the responsibilities and duties of investigation, initiation of proceedings, and prosecution, whether in the context of appropriate criminal or civil proceedings of: (a) all issues relating to the matters concerning and arising from unaccounted assets stashed abroad (b) all other investigations already commenced and are pending, or awaiting to be initiated, with respect to any other known instances of the stashing of unaccounted assets in foreign bank accounts by Pakistani citizens or other entities operating in Pakistan; and (c) all other matters with respect to unaccounted assets being stashed in foreign banks by Pakistanis or other entities operating in Pakistan that may arise in the course of such investigations and proceedings.

The Supreme Court may further direct in Suo Muto Case No. 2 of 2018 that within the ambit of responsibilities described above, there lies the responsibilities to ensure that the matters are also investigated, proceedings initiated and prosecutions conducted with regard to criminality and/or unlawfulness of activities that may have been the source for such assets, as well as the criminal and/or unlawful means that are used to take such unaccounted funds out of and/or bring such monies back into the country, and use of such monies in Pakistan or abroad. A Special Investigation Team may be charged with the responsibility of preparing a comprehensive action plan, including the creation of necessary institutional structures that can enable and strengthen the country’s battle against generation of unaccounted monies, and their stashing away in foreign banks or in various forms domestically and how to retrieve the lost caused to the nation.

______________________________________________________________________________The writers, lawyers and partners in Huzaima, Ikram & Ijaz, are member Adjunct Faculty of Lahore University of Management Sciences (LUMS).    

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