Lawless economy? Amicus curiae urges SC not to intervene in economic affairs

Top judge admits country facing immense loss due to court verdicts in two cases

Hasnaat Malik March 21, 2018

ISLAMABAD: The Supreme Court has decided on Tuesday to form a committee comprising legal and tax experts with a mandate to suggest ways to retrieve the money stashed abroad and plug legal lacunas to stop future flight of capital.

Chief Justice of Pakistan Mian Saqib Nisar led a three judge bench and conducted a meeting in his chamber with senior government officials as well as two amicus curia named Shabbar Zaidi and Mahmood Mandiwalla. Additional Attorney General for Pakistan Waqar Rana was also present in the meeting, which continued for about an hour.

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A senior official told The Express Tribune that it has been decided to form a committee, which is expected to be notified through court’s order today (Wednesday). The committee will be led by senior lawyer Khalid Anwar and will comprise Shabbar Zaidi, Dr Ikram Mahmood Mandiwalla and an expert from each of the province of Balochistan and Khyber Pakhtunkhwa (KP). Likewise, representatives of businessmen will also be part of that proposed committee. The committee will be asked to submit  its report within three weeks.

With regards to the Terms of Reference, the official said that the committee will suggest ways of ‘diagnosis, retrieval and correction’.  “Similarly, introduction of new amnesty scheme for bringing money from abroad is the authority of the executive,” he added.

Earlier, the bench took up the matter in an open court, where the chief justice admitted that the country is facing immense financial loss due to the court’s verdicts in Reko Diq and Karkey power project cases. He questioned whether the country can bear the financial loss of awards, which have been issued in international courts.  He said that they do not want to make things worse but they want the ill-gotten money to be retrieved and stop future flight of capital.

Another judge Justice Umar Ata Bandial said that the court does not want to interfere in economic affairs but it will examine the issues of economic injustice. Mahmood Mandiwalla, who is an amicus in this case, has recommended the court to show restraint in such matters. He said that the court should pass any order after considering every aspect to avoid any uncertainty.

Finance Secretary Arif Khan recommended that whoever opens a foreign currency account, he must have tax a number. Similarly, there is a need of comprehensive legislation to curb Hawala and Hundi and it should be mandatory for everyone to declare all of their foreign assets.

Earlier, the Supreme Court had set up the three-member committee headed by State Bank of Pakistan Governor Tariq Bajwa, Federal Board of Revenue Chairman Tariq Pasha and Finance Secretary Arif Ahmed Khan. The committee also submitted a report, in which different suggestions were given as to how to bring back the money in Pakistan, which is in foreign accounts. The committee has recommended amending the law to prohibit the deposit of foreign exchange purchased from domestic exchange companies in foreign currency accounts in Pakistan.

It is also proposed to amend the law, which restricts the movement of foreign currency in cash without any declaration. It has been observed that section 111 (4) (a) of the Income Tax Ordinance 2001 provides immunity without any limit to the foreign exchange remittances brought in Pakistan through normal banking channels while appreciating the objective of facilitating the remittances. The committee feels that the immunity should be capped to a reasonable amount in order to disallow the use of this channel for money laundering.

The committee said that steps will substantially curtail the outflow of foreign exchange in the future and international developments would strengthen the capacity of government agencies to locate and repatriate hidden assets abroad.

However, the committee acknowledged that these efforts may not trace all the foreign assets. It is expected that people holding these assets will try to use evasive methods, making it difficult to trace. There is a growing strong perception that authorities in Pakistan may have access to foreign assets abroad because of liberal and multilateral treaties and realizations, which are strengthened by suo motu of the court, which suggests seriousness has not been witnessed before to address this issue.

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The committee said that it is a good time to provide some incentive to Pakistan citizens to voluntarily declare their assets and repatriate them to Pakistan wherever possible.  The committee added, “The committee is of the view that this forum constituted by the SC should be made permanent to ensure enhanced level of coordination between various stakeholders. Therefore, it intends to recommend the federal government to notify the committee as a permanent forum with mandatory requirements to hold at the least quarterly meetings.”

Moreover, the committee examined the efforts being made by relevant agencies to trace and retrieve assets held abroad by Pakistani citizens and found that lack of specific information is the major hurdle in this respect.  It recommended that all relevant agencies should make use of these developments in the future to strengthen their drive for tracing and retrieval of foreign assets



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