PPP leaders are wrongly mentioning Inquiry Commission Act, 1956, whereas the petition is under Article 184 (3) where Supreme Court has complete power to do justice and establish any kind of inquiry commission like it did in the past known as 'Shoaib Suddle Commission on Riaz Malik and Arsalan and 'Shoaib Suddle and Ramzan Bhatti Commissions on Missing Containers'.
The real and tough task before the petitioners is to assist the Supreme Court in unveiling the real investor(s)/owner(s) of offshore companies about which the following startling revelation has surfaced:
"Nescol Limited and Nielson Holdings Limited were incorporated in BVI in 1993 and 1994, respectively, and were held by one bearer share each. In February 2006, Mariam Safdar signed a resolution of Nescol Limited as the "sole (bearer) shareholder." MF was appointed as the registered agent through Minerva Trust which described Mariam Safdar as the beneficial owner of both companies.
Following queries from the Financial Investigation Agency in 2012, MF invoked the Anti-Money Laundering and Terrorist Financing Code of Practice (2008) to grill Minerva for information about Nescol and Nielson. In June 2012, Minerva Trust & Corporate Services Ltd revealed that both companies "owned a UK property each" -16 and 17 Avenfield House -and were "owned by the same beneficial owner Mariam Safdar."
The important question is why these properties did not find any mention in declarations of Mariam Safdar in her tax returns and declarations before Election Commission by her spouse. Why the family opted to use tax havens to buy properties.
The reality of "beneficial owner" in offshore companies needs to be explained. According to BVI law, "a shareholder is a person (individual or corporate), in whose name shares in a particular offshore company are registered. So, it is basically what the name suggests-the "holder" of shares. However, in some situations the shareholder may hold shares for the benefit and on behalf of another person. Such shareholder would be called "nominee shareholder". In such instance, the other person-who would accordingly be the real owner of the shares-is the beneficial owner. In other words, the beneficial owner is the person who is the real, de-facto owner of the shares, entitled to all gains, profits and benefits accruing to such shares".
The Chairman NAB should have taken action after admission of beneficial ownership under section 9(a)(iii) read with section 5(da) of the Ordinance. The apathy on the part of NAB is either because of wilful inaction or incompetence, or both? For inaction on the part of NAB and other institutions like FBR, FIA etc against public office-holders and incumbent Prime Minister for stashing assets abroad unveiled in Panama Leaks and other sources, a proper action under the law is warranted.
The Supreme Court in its landmark order dated 24-10-2016 in Suo Motu Case No 17 of 2016 has already restrained the Chairman, NAB, or any other officer authorized by him in this behalf, from accepting any offer of voluntary return in terms of section 25(a) of the NAB Ordinance. The Court also ordered action against key officers in NAB over voluntary return of confiscated funds.
The Supreme Court on 02.09.2016, during hearing of Civil Appeal No 82-K of 2015, noticed abuse of authority by the NAB while taking cognisance of petty matters in terms of section 9 of the NAB Ordinance. The NAB Ordinance, the court observed, was primarily legislated to counter the cases of mega scandals and initiate proceedings against the accused persons who were involved in scandals of mega corruption and corrupt practices. However, the NAB authorities after issuance of call up notices have been suggesting the accused that they may opt in terms of section 25(a) of the Ordinance, to come forward with the offer of voluntary return of the amounts that have allegedly been acquired or earned illegally by them.
The Court has observed that section 25(a) of the NAB Ordinance empowers the Chairman, NAB, to accept such voluntary returns made by the accused persons and the amount is deposited with NAB in instalments at the discretion of the Chairman. "Alarmingly, on payment of certain portion of the amount, such person is given clean chit by the NAB to rejoin his job. The frequent exercise of powers under Section 25(a) (ibid) by the NAB on one side has multiplied the corruption usurping the jurisdiction of the F.I.A and Anti-Corruption agencies and defeated the object of the Ordinance on the other hand.
The bench hearing of Civil Appeal No 82-K of 2015 referred the matter to the Chief Justice of Pakistan, for examining the vires of section 25(a) of NAB Ordinance vis-à-vis unbridled powers of the Chairman, NAB to accept the offer of voluntary return from a person regardless of the size of the amount by any mode adopted at his discretion which falls within the domain of the judiciary. The Chief Justice of Pakistan directed the office to fix the matter in Court, treating it as public interest litigation under Article 184 (3) of the Constitution.
The Supreme Court in its order mentioned as under:
"Once a person accused of corruption or corrupt practices volunteers to offer to return the amount he has pocketed or gained through illegal means, prima facie, cannot hold any Government/Public Office, as the very act of his offering the voluntary return falls within the definition of "misconduct" under the service law and calls for initiation of disciplinary action against the accused person(s). The report filed by the NAB mentions that hundreds of employees/civil servants and others who have voluntarily returned the amounts in terms of Section 25(a) (ibid) are still enjoying their office, without being exposed to any departmental proceedings which has further multiplied the corruption in the country".
"This inaction on the part of the departmental authorities towards the accused has patronised corruption, by providing a window to the NAB as well as to the employees, who plunder public money and after paying back a portion of the alleged amount of corruption/corrupt practice, continue in their jobs", the apex court held.
Para 6 of the judgement exposes the malpractices of NAB in the following words:
"In the given circumstances, what has further disturbed us is that the amounts so collected by the NAB in instalments or otherwise is not being deposited in its entirety with the concerned Government/ Department forthwith, instead some of the amount under the garb of Rules or otherwise is retained by the NAB authorities for distribution to its officials towards award".
The Supreme Court has also directed NAB to provide by 05.11.2016 positively the "details of the amounts which they have collected from accused persons, during the last 10 years and the amounts which they have deposited with the different Governments".
"The Attorney General for Pakistan as well as the Advocate Generals of the Provinces shall handover the copies of C.M.A.No 6376 filed by the NAB to the Secretary, Establishment Division and the Chief Secretaries of all the four provinces, who in turn shall ensure initiation of departmental proceedings against the accused persons mentioned therein who have voluntarily returned the amounts under Section 25(a) of the Ordinance, besides they shall further provide the details of the amounts which different departments have received from the NAB in terms of Section 25(a) (ibid)", the apex court directed.
The Court has direct the Secretary, Establishment Division and all the Chief Secretaries of the Provinces to ensure initiation of departmental proceedings forthwith against the employees mentioned in C.M.A.No 6376 of 2016 who have voluntarily returned the amounts in terms of Section 25(a), without further loss of time and report compliance. Meanwhile, the Chairman, NAB, or any other Officer authorized by him in this behalf, is restrained from accepting any offer of voluntary return in terms of section 25(a) of the Ordinance. The case is to be heard on 07.11.2016. This and case on Panama Leaks are very important in the coming days for future course of political culture in country where unfortunately corruption has crept like a cancerous growth. The Apex Court alone can cure it and give new direction to true democratic dispensation with fearless justice delivery to masses.
(Concluded)
(The writers, lawyers and partners in HUZAIMA IKRAM & IJAZ, are Adjunct Faculty at Lahore University of Management Sciences (LUMS).)
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