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No law ever saw such unprecedented amendments: MLA act restricted to FATF requirements

By Tariq Butt
August 08, 2020

ISLAMABAD: The Mutual Legal Assistance (MLA) Act, which was unanimously passed by Parliament by incorporating massive amendments on the recommendations of the two major opposition parties, has restricted it to terrorism financing and money laundering crimes, falling in the scope of the Financial Action Task Force (FATF).

A close reading of innumerable changes inserted in the act, which went totally unnoticed, unreported in the print and electronic outlets, showed that offences of political nature and corruption were taken out of the purview of the new law that were previously included in it. “This act shall not be applicable to any offence of a political nature unless directly linked to a criminal matter,” a key amendment said.

Senior opposition leaders Shahid Khakan Abbasi and Farooq H Naek played the principal role in proposing amendments with the consent of the Pakistan Muslim League-Nawaz (PML-N) and Pakistan People's Party (PPP) respectively. By limiting the law to the FATF obligations, the expressions/offences “crime, corruption” were omitted from the original provision that had said “determination as to whether a property is proceeds of or instrumentalities of crime, money laundering or terrorist property or corruption.” Only the issues of “money laundering” and “terrorist property” were left intact in the clause.

The amendments were so sweeping and widespread that barring clause 21 all of its remaining 26 sections were changed with countless modifications and omissions. Two additional sections were also added by bringing them to 28. One of the new clauses provided for parliamentary oversight. It said after every six months the central authority shall lay before the National Assembly the statistics pertaining to MLA undertaken by it.

A far-reaching amendment erased concentration of power in just one bureaucrat – interior secretary – or his designated person. He was to act as the ‘central authority’ attending to the MLA request from a foreign country and seeking such help from abroad and dealing with all related matters. He was to exercise inclusive powers and functions under this law. Now the amendment, however, diluted his power and says the central authority means the office of the interior secretary and the powers of such office shall be exercised by an executive committee comprising the interior secretary and secretaries of law and foreign affairs and all the four provincial home secretaries. The interior secretary will be its convener. The decision of the central authority shall be by majority of the members present.

Another amendment said the central authority may initiate or receive MLA requests to or from foreign countries, as the case may be, in accordance with the prescribed form, manner and conditions. However, no MLA request will be approved by the central authority without issuing notice to the person to whom the request relates. Another change is meant to avoid persecution of a person transferred abroad as a result of the MLA request by a foreign country. “A transfer order shall set out the name of the person serving imprisonment and his place of confinement with a specific provision for the safety, security and well being of the person being transferred,” the approved amendment said. It was argued that a transferred person should be lodged in an ordinary detention centre where the consular facility should be available to him.

Another amendment changed the definition of the assets confiscation order. It is now meant an order made by a court of Pakistan or a country with whom Pakistan has entered into reciprocal agreement for the confiscation of proceeds or instrumentalities of crime or terrorist property after criminal conviction. In the original bill, the confiscation order was an order made by a court or other competent authority of Pakistan or a court of a country with whom of Pakistan has entered into an agreement or reciprocal agreement for the confiscation of proceeds or instrumentalities of crime or terrorist property, whether or not the order is based on criminal conviction.

While arguing for amendments, it was pleaded that an overarching provision be provided in all FATF specific laws, which should exclude prosecution on political or military ground, as is specifically provided in Article 3 of the Interpol Constitution, which says it is strictly forbidden for the organisation to undertake any intervention or activities of a political, military, religious or racial character.

It was asserted that the act should be strictly confined to financing for terrorism and money laundering as inclusion of ordinary crimes in its purview will not only result in abuse but will also eliminate the efficacy of this legislation. The general and vast definition of “criminal offence” will defeat the purpose of the law for compliance of the FATF regime, and open numerous avenues of abuse. Therefore, criminal offence has to be specifically defined to meet the FATF requirements.

As per the approved act, the National Accountability Bureau (NAB) will continue to directly pursue with foreign countries the MLA requests in relation to matters falling under its law and the UN Convention Against Corruption as a recipient or requesting agency.

The act said that the MLA act will be in addition to and not in derogation of any provision relating to MLA in criminal matters contained in any law for the time being in force including the NAB ordinance, Extradition Act, Security Exchange Commission of Pakistan ordinance, Transfer of Offenders ordinance, Anti-Money Laundering Act and Prevention of Electronic Crimes Act. The Customs Act was excluded from this list by an amendment.

Since the offence of corruption was taken out of the act, the NAB has nothing to do with the present legislation. Its scope already stands defined in the National Accountability Ordinance, 1999.