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July 8, 2018

With SC help, FIA saves Pakistan from American sanctions


July 8, 2018

In a remarkable turn of events, the Federal Investigation Agency (FIA) has saved Pakistan from crippling US sanctions by convincing the US State Department to upgrade the country’s status on the “Trafficking Watch List”. This miracle was made possible, largely, by FIA working against the clock to get, with the support of the chief justice of the Supreme Court and the Foreign Office, the outgoing parliament to enact two landmark laws just before its term expired on the 31st of May, 2018.

While Pakistan’s recent placement on the Financial Action Task Force’s ‘grey list’ this month has understandably raised plenty of concerned eyebrows, few have bothered to take note that until last Friday, Pakistan had been on the State Department’s equivalent of FATF grey list – the “Tier 2 Watch List” – for four years running. In the 2018 edition of the State Department’s Trafficking in Persons Report, released on 28 June, Pakistan has been removed from the grey “Tier 2 Watch List” and placed in regular Tier 2 in relatively decent company along the likes of Singapore and a number of European countries such as Greece and Iceland.

As part of its annual “Trafficking in Persons Report”, the US Statement Department ranks countries of the world, based on the efforts countries are making towards addressing this in human crime, into one of the 4 categories or “Tiers”: “Tier 1” (Fully compliant), “Tier 2” (Not fully compliant yet but making significant efforts), “Tier 2 Watch List” (Grey) and “Tier 3” (Black). Countries placed on the Watch List for 4 consecutive years, and who do not demonstrate tangible and significant improvement in the 5th year, are automatically downgraded to Tier 3 the following year and have broad sanctions slapped on them which make them not only ineligible for US’ own aid and cooperation but also earns them US opposition at US-dominated multilateral forums such as the International Monetary Fund (IMF).

The importance the US attaches to the Pakistan’s policies and actions regarding trafficking in human beings was highlighted in a meeting in December last year between the then interior minister Ahsan Iqbal and the visiting Director from the State Department Kari Johnstone who was accompanied by the US Ambassador to Pakistan, David Hale, during the discussion. In this meeting, as well as in a more frank no-holds barred discussion at the FIA Headquarters during the same visit, Ms. Johnston made it clear that Pakistan was staring down the barrel of a-gun-called-sanctions unless it took immediate and concrete steps such as enactment of anti-trafficking laws.

It just so happened that FIA had, in fact, been trying to bring in new separate Migrant Smuggling and Trafficking laws since 2012 but had never managed to obtain clearance of the Ministry of Interior, for one reason or another, for placing the proposed laws before the Cabinet and the Parliament. FIA was desperate to have the new laws because no laws existed in Pakistan which properly defined the crime of migrant smuggling nor did it have a legal instrument which comprehensively dealt with trafficking, especially domestic trafficking.

With still no new law in hand come Spring 2018, FIA found a powerful ally in the chief justice of Pakistan when he began to take a close look into the problems holding FIA back pursuant to the suo motu notice he had taken of the Turbat tragedy in which 20 intending Pakistani migrants lost their lives on the way to Iran. Surprised to find out that there was no law in Pakistan which unambiguously defined the crime of migrant smuggling, the chief justice ordered, along with a host of other measures aimed at strengthening the agency, the FIA to urgently proceed with drafting a new law to address the gaping legal hole.

Consequently, FIA prepared a fresh draft of the Migrant Smuggling Bill in accordance with international and UN standards and spent the next few months trying to push the law through the usual complicated bureaucratic chain to obtain numerous approvals required at the many different levels including by the Ministry of Interior, Law and Justice Division, the Cabinet Committee for Legislative Cases and the Cabinet and the prime minister himself.

Well-placed sources in the Foreign Office have revealed that sometime around the end of March, with the FIA still having failed to receive all the approvals required to place even the Migrant Smuggling bill before the Parliament, the US upped the ante and the US Assistant Secretary of State Alice Wells conveyed to the Pakistan’s then ambassador in the US, Aitzaz Chaudhry in a meeting in Washington that, unless the government of Pakistan immediately passed credible anti-trafficking legislation, Pakistan would be downgraded to “Tier 3” in the upcoming Trafficking Report to be released in June 2018 and that this demotion would attract severe punitive sanctions against Pakistan. The sanctions would result in cut off of aid from the US itself as well as oblige the US to actively seek to deny the grant or extension of loans and assistance to Pakistan at forums such as banks and IMF. A number of other consequences, such as halting of US funding of Pakistan government officials’ training programmes, would also follow.

This meeting proved a turning point in the saga as the Foreign Office conveyed the gist of the discussion between the US Assistant Secretary of State and the Pakistan envoy in a tersely worded letter to the Ministry of Interior. The letter made no bones about the Foreign Office’s belief that unless the legislation was allowed to go through Pakistan would have US sanctions imposed on it.

The daunting message set the cat among the federal government pigeons like nothing had done ever before. The Interior Ministry called back FIA’s point person piloting the new laws, then Director Immigration Tariq Malik, from leave. This FIA officer was then tasked to immediately draft, in addition to the migrant smuggling law that he had already drafted and presented before the prime minister a few days earlier, A New Anti-Trafficking Law which he did and submitted it to the Cabinet, completing the process in a matter of days thanks to the “signal-free” passage now provided to the FIA.

With the Supreme Court pushing for progress at every frequently-scheduled hearing, and the international consequences for Pakistan of failure to legislate made clear to all, there began a period of about 7 weeks of intense activity in which most if not all the stakeholders came together to support FIA’s efforts to pass the new legislation ahead of the official date of dissolution of the National Assembly – 31st May, 2018. During this period, both the Migrant Smuggling and the Anti-Trafficking Bills were first issued as presidential ordinances and then placed before the Parliament and its various committees.

In a remarkable show of consensus among ministries and departments, the bureaucratic hurdles which had thwarted FIA’s previous proposals for similar laws in the years were swept aside. The Minister for State for Law, Bashir Mahmood Virk, and the Law and Justice Division under his command, were particularly helpful -- vetting multiple revisions of the laws at short notice and even defending them before public representatives at times.

The head of the FIA personally lobbied for the laws before anyone and everyone who would listen. He called on both the Speaker of the National Assembly, Sardar Ayaz Sadiq and the Chairman, Senate, Sadiq Sanjrani, to explain the significance of the laws and urged them to help forge consensus in their respective houses that would allow the legislation to pass.

Realising that if these two laws did not clear both houses of the Parliament by the end of the May, US sanctions would be imposed and the entire exercise rendered meaningless, the Director General FIA asked Tariq Malik, his Director Immigration, who had drafted and piloted the laws throughout the approval process to camp out in the Parliament with a view to ensure that, and until, the laws were passed.

Over the next six or seven weeks, the designated FIA officer held many dozens of meetings with legislators, lobbying both the government and the opposition representatives for the passage of the bills. Not being used to government officials pursuing legislative initiatives with much enthusiasm, let alone go so many extra miles, many of the legislators and staff of the respective National Assembly and Senate secretariats were apparently won over by the zeal and commitment shown by FIA in getting the legislation passed. Consequently, senior officials of the two secretariats also took it up as a national cause and went out of their way to facilitate the numerous and laborious steps that every piece of proposed legislation has to go through.

Sources claim that a most positive role in this enterprise was played by Sadiq Sanjrani, and, very especially, Sardar Ayaz Sadiq, the Speaker of the National Assembly. Not only did they instruct their respective secretariats to facilitate the FIA in completion of the necessary formalities, they also, played a very constructive behind-the-scenes role in educating the legislators about the non-partisan nature of the laws which allowed the legislation to keep moving forward in spite of the otherwise acrimonious party politics on display in the Parliament during the last few months.

In spite of the goodwill generated by FIA’s lobbying and demonstrable commitment to the national initiative, various hurdles prevented the legislation process to be completed until the last week of May – the very end of the life of the National Assembly. A number of factors, including occupation with other pending legislative business, a very long budget session and absence of members of National Assembly due to campaign engagements leading to frequent adjournments on account of lack of quorum, took the passage of the laws, especially the more important trafficking law, right down to the wire. At one point it looked as if FIA would run out of time and, as it turned out, the president’s assent to the trafficking act was received only on 1st June, 2018 after the National Assembly already stood dissolved.

When contacted by this reporter, an FIA official, who refused to speak on the record, downplayed the role of external goading in the enactment of these laws. “These laws have been enacted under the directions of the chief justice to protect the citizens of Pakistan, not the people of any other country. The FIA had been trying for years to get similar laws passed but was unable to do so due to bureaucratic inertia which was broken this year thanks to the interest taken by Supreme Court in strengthening FIA”, the official claimed.

When asked if there was an international dimension to the push for this legislation, the official said that “Pakistan is a signatory to the UN Convention on Transnational Organised Crime and was under international obligations to bring its laws in conformity with UN guidelines. Consequently, these laws have been enacted in line with international standards with technical assistance of the United Nations Office on Drugs and Crime. The reason why the FIA was able to do this year what it had not been able to do since 2012 [make the desired laws] is the support and monitoring of the Supreme Court”, claimed the FIA official.

While the role and the support of the Supreme Court in trying to empower FIA in order for it to be able to discharge its mandate is obvious, there is also ample evidence that FIA was aware that US sanctions formed a clear and present danger for Pakistan and worked closely with the Foreign Office to neutralise the threat by forcing the relevant ministries to support the required legislation. By all accounts, the FIA kept the Foreign Office of the progress at each step of the legislative process which in turn stayed in touch with Pakistan’s foreign partners including the United States to ensure that Pakistan’s efforts, even those in pipeline, did not go unregistered and unacknowledged.

Everyone connected with the exercise, both at the Foreign Office as well as the FIA, spent the month of June on tenterhooks waiting to see whether the legislation would prove enough to save Pakistan from slipping down to Tier 3 and the dreaded sanctions. Those within the FIA who were familiar with Pakistan’s data submitted in response to the State Department’s annual questionnaires were particularly nervous because, for no fault of theirs, the data did not adequately reflect all the anti-trafficking efforts being made in the country at different levels and appeared, perhaps misleadingly, to be “softer” than the data submitted the previous year. There was also some concern whether the new legislation would form part of the factors State Department would take into consideration in determining Pakistan’s ranking given that the laws were enacted after the coverage period for the 2018 report which stretched from March 2017 to March 2018.

In the end, none of these things mattered and as a consequence perhaps of a combination of factors including an aggressive case for Pakistan made out in meeting with Director Kari Johnstone at FIA Headquarters in December last year, a convincing annual “Trafficking in Persons” report prepared by FIA despite the absence of adequate data, effective diplomacy by the Foreign Office and most of all, the new legislation drafted by FIA in line with international standards and passed with support of the Supreme Court, helped save the day for Pakistan. In a country rendered dysfunctional by perpetual dissent and discord, this is a rare example of multiplicity of stakeholders and actors, including also the Ministry of Interior, Law and Justice Division and the Parliament, coming together to achieve success for the country. Would it be too much to expect more arms of the government to follow this example and achieve similar results in other areas in the future?