ISLAMABAD: Three laws related to Financial Action Task Force (FATF) passed in a joint session of the Parliament are deemed violative of basic fundamental rights enshrined in the Constitution, and to suppress dissenting voices of the legal fraternity and human right activists. The federal government claims that these amendments in the FATF-related laws are aimed at streamlining the existing Anti-Money Laundering (AML) law and bring it in line with international standards prescribed by FATF and will reflect government's firm resolve to strengthen its AML regime. “With the adoption of these amendments Pakistan would meet the criteria of technical compliance in the AML Act, 2010 are required,” said the Statement of Objective and Reason of the AML Act.
During the joint session legislation, the Anti-Terrorism Act, 1997 and anti-Money Laundering Act 2010 were amended, while the Waqf Properties was introduced for Islamabad Capital Territory.
Independent lawyers, and noted human rights activists and opposition political leaders told Business Recorder that these three new laws may be abused by the administration through keeping their opponents/critics in jail and by invasion of privacy. Advocate Colonel Inam ur Rahim (retd) told Business Recorder that these laws are contrary to the fundamental rights guaranteed to citizens in the Constitution, adding the laws which were legislated to get out of the Grey List do not exist in European countries.
He said citizens’ life and properties are protected under Articles 4 and 9 of Constitution. Article 4(2) (a) says, “No action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law,” while Article 9 states; “No person shall be deprived of life or liberty save in accordance with law.”
He said the government cannot curtail fundamental rights enshrined in the constitution. If through subordinate legislation fundamental rights are curtailed then their actions would be challenged in the courts. He expressed concern over the way these laws were passed in a joint session of the Parliament.
Akram Sheikh, a senior lawyer, concurred, stating that in various countries, including in India and Bangladesh, law enforcement agencies cannot enter any premise without a search or arrest warrant.
In Section 2 (xviii) of Anti-Money Laundering (Second Amendment) Act, 2020 National Accountability Bureau (NAB) has been included as investigating or prosecuting agency with other investigation agencies.
Akram Sheikh said, in the presence of Federal Investigation Agency (FIA), Anti-Narcotics Force (ANF), Directorate General of (Intelligence and Investigation – Customs) Federal Board of Revenue, Directorate General (Intelligence and Investigation Inland Revenue) Federal Board of Revenue, Provincial Counter Terrorism Departments the inclusion of NAB, which has no expertise in terror financing opens the door to political victimization.
Usama Khawar, a lawyer and human rights activist, said under this amendment spying or wire-tapping of any citizen could be done without prior permission of the court. After the insertion of Section 19C in the Anti-Terrorism Act, 1997 through the Anti-Terrorism (Third Amendment) Act, 2020 now “an investigating officer may use techniques including undercover operation, intercepting communications, accessing computer system and controlled delivery for investigation of financing of terrorism under the law in force.”
Usama said as Section 37 of Act VII, 2010, through Section 17 of the AML Act 2020 has been substituted, according to it if an investigation officer thinks a person was aware of an offence though he denies knowledge of it shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. That person would have to prove that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention.
Advocate Inamur Rahim said the Islamabad Capital Territory Waqf Properties Act, 2020 has nothing to do with terrorism but through this Act the government wants to have direct control over and audit the funds of religious institutions and Trusts in the federal capital.
Under Section 8(1) of the Waqf Properties Act the chief administrator may, by notification, take over and assume the administration, control, management and maintenance of waqf property.
He said now the authorities can take action against religious institution or Trust in the name of law and order, stability and terrorism. After this act the district and the High Court will not be able to issue stay against the order of Aquaf Administrator, he added.
Apart from legal experts, politicians from opposition parties also voiced their serious concerns on the government’s FATF-specific laws.
Senior Pakistan Muslim League-Nawaz (PML-N) leader Ahsan Iqbal termed the recently passed government bills as arbitrary and coercive. He accused the government of enacting laws to victimize political opponents, besides violating the basic human rights of the people.
Iqbal stated that “The level of oppression can be seen from the fact that for the first time in the country’s history, the Leader of the Opposition in National Assembly Shehbaz Sharif was not allowed to speak in the House when these bills were being passed, which is appalling.”
Pakistan People’s Party (PPP) Parliamentary Leader in National Assembly Syed Naveed Qamar said that the right to warrant before arrest had been taken away from the people in the recently passed FATF-related laws.
“These laws give the security apparatus the sweeping powers to apprehend anyone in complete disregard to fulfilling the necessary legal requirements first. This will allow the government to target its political opponents and promote witch hunting and vendetta driven politics.”
Jamat-e-Islami (JI) chief Sirajul Haq held the PML-N and the PPP responsible for the passage of FATF-related bills from the National Assembly and the Senate, saying the government and “so-called” mainstream opposition parties have surrendered the freedom of the nation to international powers.
“The FATF-related legislation is based on ill-intention and it would have dreadful impact on the future of the country,” he added.
The laws opposed by jurists and opposition leaders are as follows;
First insertion of 7D(2) though Section 8 of the AML (Amendment) Act 2020, which states “Where a reporting entity forms a suspicion of money laundering or terrorist financing, and reasonably believes that performing the CDD process will tip-off the customer, the reporting entity shall not pursue the CDD process and shall file a STR.”
Second Section 2(xviii) ) “investigating or prosecuting agency” means the National Accountability Bureau (NAB), Federal Investigation Agency (FIA), Anti-Narcotics Force (ANF), Directorate General of (Intelligence and Investigation – Customs) Federal Board of Revenue, Directorate General (Intelligence and Investigation Inland Revenue) Federal Board of Revenue, Provincial Counter Terrorism Departments or any other law enforcement agency as may be notified by the Federal Government for the investigation or prosecution of an offence under this Act;
Under Section 5(6) (6) “…the Director General may, if there appear to be reasonable grounds to believe that a property is involved in money laundering, order freezing of such property, for a maximum period of fifteen days, in any manner that he may deem fit in the circumstances.”.
Through Section 17 the Section 37 in Act VII 2010 has been substituted which says;.” Offences by legal persons.— (1) Where a legal person commits an offence under this Act, every person who at the time when the offence was committed, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.”
Section 8 (1) of Waqf Properties Act, 2020 says; “Notwithstanding anything to be contrary contained in section 22 of Religious Endowments Act, 1863 (XX of 1863) or any other law for the time being in force or in any custom or usage or in any decree, judgment or order of any court or any other authority or in any proceedings pending before any court or any other authority, the chief administrator may, by notification, take over and assume the administration, control, management and maintenance of waqf property.”
Section 14 of Waqf Properties Act, 2020, “Notwithstanding anything to the contrary contained in any other enactment for the time being in force, the district court or the High Court shall not, pending disposal of a petition filed under section 13 shall not issue a temporary injunction or an order restraining the chief administrator from taking over or assuming the administration, control, management and maintenance of property.”
Copyright Business Recorder, 2020
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