ISLAMABAD: Certain points in the terms of reference (ToRs) assigned to the Broadsheet Commission of Inquiry (CoI), headed by retired judge Sheikh Azmat Saeed, go far beyond the actual controversy involving huge payments to foreign asset recovery firms by the National Accountability Bureau (NAB) without any gain to the exchequer.
While at least six ToRs are specific to dealings related to the asset recovery companies, some ToRs expand the scope of the inquiry to the past and encroach upon judicially concluded matters.
“While the six ToRs relating to the asset recovery firms are precise, targeting the actual subject, two ToRs are open-ended, vague, apparently meant for a fishing expedition and roving probe. Such a recourse will open a pandora’s box for political point-scoring,” prominent lawyer Kashif Malik explained to The News when contacted. “Such ToRs are always definite, specific to the matter to be scrutinised-- and everything can’t be incorporated in them.” He believes that the CoI might call former NAB chairmen to question what led to the closure of the cases against the Sharifs and Zardari prior to the signing of the Broadsheet agreements.
The saga of the two Broadsheets and the International Assets Recovery (IAR) Limited began in June and July 2000 during General Pervez Musharraf’s rule when the controversial and one-sided agreements were signed by the National Accountability Bureau (NAB) with the foreign firms.
There have been demands for an investigation into the payment of a hefty amount of foreign exchange to the foreign companies for their failed bids to trace, track, recover and retrieve looted money stashed abroad, starting in 2000. However, the government has decided to expand the scope of the inquiry and chosen to go back another decade for the purposes of the investigation.
Although the ToRs do not cite issues pertaining to the continuation and closure of the cases regarding the Surrey Palace, Hudaibiya, the $60 million in Swiss accounts and the London apartments, they do cover them indirectly by asking the CoI to look into the “incidents and cases” beginning from 1990. The obvious targets are the Sharifs and Asif Ali Zardari.
This is unusual because cases such as the Surrey Palace, Hudaibiya, the Swiss accounts and London apartments have already been adjudicated upon by the courts. In one lawyer’s opinion, the CoI has no power or authority whatsoever to examine those matters that have already been decided by the courts.
The payments of $29 million to Broadsheet LLC (Isle of Man) and $3.7 to another Broadsheet and IAR ($1.5m) are the actual questions necessitating the probe, which caused a public uproar and calls for an investigation. In March 2019, the London Court of International Arbitration (LCIA) had given the $20 million final award against NAB. However, NAB did not pay that amount, and due to the interest on it, the award amount reached $28.7 million by December 2020. What is to be investigated is why the delay was caused which resulted in the addition of $10 million in interest, and why the faulty agreements were inked. All this happened during the tenure of the present government.
The controversial points in the ToRs state that the CoI will identify the incidents and cases relating to recovery efforts and legal proceedings pursued by the Pakistan government since 1990 in foreign jurisdictions for recovery of unlawfully removed money or illegally acquired assets, but which were closed, abandoned and/or withdrawn without any valid reasons or justification resulting in colossal losses to the country; and to identify and fix responsibility of any person, body or authority, which was guilty of gross negligence or misconduct or acted with mala fide motive or objective in respect of these matters.
The specific and clearly delineated ToRs make it clear that the CoI will examine the process of selection and appointment of Trouvons LLC, Broadsheet LLC, and IAR and the execution of agreements in 2000, the circumstances, reasons and effect of revocation of these contracts; identify and determine the reasons and effect of settlement and payments made on behalf of Pakistan to IAR and Broadsheet LLC in 2008, and whether the payments were justified; and identify the persons or officials responsible for making a payment of $1.5m to the wrong person in 2008 who was not entitled to receive such a payment.
According to these ToRs, the CoI will also identify whether the arbitration proceedings before the LCIA and subsequent appeal before the High Court of Justice in London regarding Broadsheet were conducted diligently and efficiently and determine as to whether after the finalization of the award and appellate proceedings before the High Court of London regarding Broadsheet LLC, the process of making payments to the claimant was legal and in accordance with the prescribed rules and procedure.
