ToRs demand inquisitorial procedure: opposition leader’s letter to PM

WEB DESK: Leader of Opposition in the National Assembly Syed Khurshid Ahmed Shah said he has written a letter to the Prime Minister on Terms of Reference (ToRs) for a proposed commission to investigate the Panama Papers scandal.

Addressing a news conference in front of Parliament on Thursday, he said that the TORs were prepared with the consultations of opposition parties and representatives of Supreme Court Bar Association.

He said that for this purpose, we adopted a proper way and wrote a letter attached with a draft of TORs to the Prime Minister on Thursday. Answering a question, he made it clear that those people whose loans were written off and those who avoided taxes must be brought to justice along with the family of the Prime Minister. He said the opposition has not targeted the Prime Minister as it is an international scandal and “the prime ministers of two countries have tendered resignations on this issue”.

Answering another question, the Opposition Leader said that we are not avoiding the negotiations with the government on ToRs and the Panama Papers however, so far, no member of the government has contacted the opposition. The following is the content of letter:

“WHEREAS the disclosures termed as PANAMA PAPERS have revealed that Family of the Prime Minister of Pakistan Mian Mohammad Nawaz Sharif, along with several other Pakistani nationals, have been maintaining offshore bank accounts and interests in offshore companies, investments and properties and other assets outside Pakistan, which they have not declared to any official authority in Pakistan;

“AND WHEREAS such accounts, properties, assets, companies and investments appear to have been opened, incorporated, registered, made and/or acquired through undeclared sources, funds and means and, prima facie, to evade tax as well as scrutiny, accountability and liability under Pakistani law;

“AND WHEREAS repeated public explanations and statements of the Prime Minister and members of his Family have been manifestly contradictory inter se, and have raised more doubts and questions than they have answered;

“And WHEREAS the Panama Papers revelations have brought Pakistan into disrepute globally by naming the Prime Minister’s family and other Pakistani nationals and have raised questions about the legality and propriety of their assets held abroad and in offshore companies;

“AND WHEREAS it is necessary for the efficient and transparent functioning of the Government and the restoration of the image, honour and prestige of the country that all shadow of doubt be removed from the names of the Prime Minister, his Family and other Pakistani nationals;

“And WHEREAS the Prime Minister as the head of the executive has all the state investigative agencies under his control and hence the need for an independent Commission for across the board accountability.

“1. Definitions

“Act” shall mean the Panama Papers (Enquiry and Trial) Act 2016

“Commission” shall mean the Commission appointed under the Act;

“Family” of the Respondent shall include parents, spouse, sons and daughter and grandchildren

“Prime Minister” shall refer to Mian Muhammad Nawaz Sharif

“Respondent” shall mean a Pakistani named in Panama Papers and shall include the Prime Minister

2. The Commission shall inquire into the following questions arising out of the disclosures from Panama Papers:

(i) What properties are held beneficially, benami or otherwise bought and sold by the Respondent and his Family during the period 1985 to 2016?

(ii) What sources of income were available to the Respondent and his Family during this period?

(iii) What bank accounts were these funds kept in?

(iv) Were the Respondent and his Family members not required to pay Income Tax in Pakistan for such incomes?

(v) On which date and through which banks were the funds utilised in the purchase of the properties abroad?

(vi) Lifting the veil of incorporation, who was the person(s) from whom the aforesaid properties were purchased?

(vii) It shall further be probed as to when were the properties purchased by the seller and with similar disclosure of bank and income tax statements of the seller.

(viii) Where a Respondent himself admits the ownership of any properties abroad, what other properties, assets or interests did the Respondent or his Family acquire by payments made from bank accounts from which the disclosed properties were purchased by the Respondent?

(ix) Is the accretion and acquisition of assets commensurate with the Income Tax paid year wise by the Respondent and his Family since 1985?

(x) Whether opening, maintaining and operating offshore accounts by or on behalf of the Respondent and his Family or being beneficiaries of such accounts could be regarded as legal proper for him and /or his Family?

(xi) Whether the Respondent and his Family are required to disclose money trail / transfer of funds into their offshore accounts and money trail / transfer of funds out of such accounts for purchase of properties or other investments in foreign countries?

(xii) Whether the Prime Minister or his Family during their stay abroad from December 2000 were State guests on behalf of Pakistan?

(xiii) Whether any property, gifts or amounts received by them during that period belonged to the State of Pakistan and were liable to be deposited in the State Exchequer?

(xiv) Whether a Respondent by concealing the ownership and source of income through which the properties were procured, and concealing them in the nomination papers or before relevant tax authorities during the previous elections, has committed corrupt and illegal practices under the elections/tax laws?

(xv) Whether all transfer of funds, purchase of assets and all other investments and transactions can be chronologically reconciled by the Respondent or his Family?

1. A Special law titled “PANAMA PAPERS (INQUIRY AND TRIAL) ACT 2016″be passed to facilitate the investigation into the assets, foreign and domestic, of the Prime Minister and all other Pakistanis named in the Panama Papers which shall be formulated with the consensus of the Opposition and shall contain provisions for:

(a) A special commission headed by the Chief Justice of Pakistan comprising of two other judges of Supreme Court of Pakistan to be nominated by the Chief Justice.

(b) The Commission may appoint a committee of experts(hereinafter referred to as the “Committee”) in international forensic audit to carry out an exhaustive investigation and audit into the offshore companies and their accounts owned by the Respondent and his Family including all transactions, sales and purchases of all assets, moveable and immovable, including stocks, shares, debentures and equitable or benami interests, opening and operation of all bank accounts, including offshore bank accounts and incorporation of all companies including offshore companies whether directly or behind corporate veil(s) wherever in the world they maybe.

(c) It shall be the critical duty of the Committee to verify the money trail which provided funds for such offshore companies and the consequential payments out of such funds for investments and other financial transactions;

(d) The Commission shall direct the Respondent to give a mandatory authorisation by an irrevocable general power of attorney empowering the Committee and or its designated members, to lift all corporate veils, access all bank accounts, offshore companies and accounts, stock exchange accounts, corporate registers including registers of shareholders and directors, land and estate records (by whatever name or nomenclature called in any given jurisdiction), and the facilitation of the Committee/member by the Respondent by any other means that may be required by any foreign jurisdiction, governments, authorities or officials concerned and such facilitation may include the signing of any documents, forms, applications, requests or authorisations required;

(e) The Act shall provide for an irrebuttable presumption of guilt in the event the Respondent refuses or fails to give the authorisation or extend the facilitation referred to in clause (d) above;

(f) A presumption, [in line with the Prevention of Corruption Act 1947, the Ehtesab Act 1997and the NAB Ordinance 1999], that once ownership of the Respondent or his Family of an asset or interest is proved, or admitted, (whether as banamidar, beneficiary or trustee or in any other capacity), the burden of proving that it was lawfully acquired through legitimate sources, funds, and a lawful mode, shall be on the Respondent;

(g) In case a Respondent and his Family omit to extend fullest cooperation to the Committee or if they are unable to rebut the presumption that the assets were not acquired through legitimate sources, funds and means, the Commission shall direct them to forthwith liquidate and bring those assets and funds to Pakistan where the State shall forfeit them.;

(h) Before the Commission enters upon any Inquiry, the Respondents (starting with the Prime Minister and his Family as volunteered by himself) shall place all and complete information of all their world-wide moveable and immovable assets, and interests in properties, benami, beneficial, offshore or otherwise held at any time since 1985 along with with full details of the Income Tax paid year wise since that year;

(i) All Respondents including the PM and his Family shall present themselves before the Commission for examination and cross-examination, by any person permitted by the Commission;

(j) The Commission shall have all the powers of a Court under the Constitution, CPC, CRPC, and the Supreme Court Rules;

(k) A Respondent held responsible by the Commission for any illegal act or conduct shall be prosecuted and punished in accordance with law by a court of competent jurisdiction;

(l) Each report of the Commission shall be published by the Federal Government within one week of its submission provided that the report concerning the Prime Minster and his Family shall be completed and submitted in the first instance;

(m) All proceedings before the commission shall be open to the public.

2. The powers and procedure of the Commission shall be as under:

(i) The Government of Pakistan, the Provincial Governments and all Governmental agencies and other organisations like NAB, FIA, IB, SBP and SECP shall extend all cooperation and assistance necessary to the Commission and shall comply with all its directions.

(ii) The Government of Pakistan shall be obliged by law to fully assist the investigation by extending all necessary financial, legal, diplomatic support including obtaining cooperation from various international agencies for the conduct of the investigation.

(iii) The Government of Pakistan shall be responsible for creating appropriate infrastructure and other facilities and for making required funds available to the Commission to complete its task.

(iv) The Commission may constitute an international joint investigation team or teams and seek international cooperation from foreign countries /agencies to provide information, documents, evidence and record from abroad or otherwise request for cooperation and assistance in the investigation or issue letters and interrogatories, in accordance with the United Nations Convention Against Corruption (the “UNCAC”) , the World Bank Stolen Assets Recovery Initiative (the “STAR”) and Mutual Legal Assistance Requests (the “MLARS”).

(v) The procedure of the inquiry shall be fully inquisitorial in character.

(vi) The burden of proof in all matters shall be entirely on the Respondent and his Family to prove their innocence.

(vii) The time period for completion of the inquiry in relation to the Prime Minister and his Family shall be (03) three months extendable by (01) one month for reasons to be recorded by Commission, from the date of commencement of the inquiry. The inquiry in respect of other Respondents shall be concluded within (12) twelve months.”

Source: Business Recorder