Asif Ali Zardari

LONDON: The Pakistan High Commissioner in London on Friday bitterly attacked, using extra strong language, over ‘The Statesmen’ report that the 12 Swiss boxes had been moved to his residence but still did not deny that the boxes were not at his home.

Wajid Shamsul Hasan, rebutting the report, called it baseless, malicious and unfounded. He said there was no truth whatsoever in allegations that the boxes had been tampered with. “They are kept in safe custody in the same condition as they were left by NAB Prosecutor General Dr Danishwar Malik,” he added.

This clarification still did not state the location of the boxes, but he said the shifting of the boxes from Geneva to London was not a clandestine affair but was transparent and done in broad daylight.

A press release issued by the Pakistan High Commission in London said the high commissioner had requested the NAB chairman that Dr Danishwar Malik be sent to London to take the boxes to Pakistan after checking the seals put on them in his presence were in place and there was no tampering.

“Unfortunately, Dr Danishwar Malik fell sick. He had to undergo heart surgery and needed time to recover to travel to London.” The press release disclosed that now the NAB had informed that due to illness, Dr Danishwar Malik would not be able to travel and the NAB was making alternate arrangements for the transportation of boxes in the custody of one of its nominees.

Although, Wajid said he would have preferred to hand over the boxes to Dr Danishwar Malik since he was the only person who knew what was in those boxes. “It seems his illness has left him with no other option but to accept his substitute for the handing over of the boxes,” the press release added.

While convicting the late Pakistani premier Benazir Bhutto and her husband Asif Zardari in August 2003, consequently leading to the confiscation of the duo’s assets, the Swiss Examining Magistrate David Devaud had studded his verdict with the guidelines provided by the United Nations Convention on Corruption, a research conducted by ‘The Statesmen’ reveals.

Very much in line with the provisions of the then under-discussion UN convention, the Swiss judge had also ordered that the assets confiscated from Benazir Bhutto and Zardari be returned to Pakistan.

The text of the United Nations Convention against Corruption was negotiated between January 21, 2002 and October 1, 2003, after the General Assembly had recognised in December 2000 that an effective international legal instrument against corruption was desirable.

Adopted by the General Assembly by its resolution on October 31, 2003, this convention had finally come into force on December 14, 2005 after 30 ratifications. Triggered by the worldwide concern over corruption by heads of state, the dangerous combination of immunity from prosecution and the exercise of unlimited personal power by these civil and military dictators, the primary aim of the UN Convention on Corruption was to legally challenge those leaders who were guilty of devastating their respective countries by persistent and organised looting of their national coffers.

The articles 51 to 68 listed in chapters V to VIII of this convention focus on assets deposited in lucrative offshore tax havens like Switzerland and the strict banking secrecy laws being practised at these financial institutions.

The Chapter V of this convention commences with a significant statement: “The return of assets pursuant to this chapter is a fundamental principle of this draft and the states parties shall afford one another, the widest measure of cooperation and assistance in this regard.”

Switzerland’s notoriety as a safe haven for illicit funds, leading to an estimated one-third of the world’s illegal wealth being deposited in its 400 odd banks was first challenged in 1999-2000, after legal action was taken by the World Jewish Council on behalf of the Holocaust victims.

Judge Edward Korman of the United States District Court in New York had then approved a $1.25 billion settlement between several Swiss banks and the plaintiffs. It was actually this particular development that had dented Switzerland’s banking secrecy initially.

As the Swiss banking sector opened up gradually and unwillingly, the appointment of uncompromising and effective examining judges, the concept of disclosure was introduced in the country’s financial sector.

Armed with the legal powers to force disclosure and freeze assets, Switzerland quickly developed a legal climate, which in many ways now leads the global fight against corruption, but this transformation did not take place without complications or criticism.

Article 54 of the UN Convention on Corruption provides that each state party shall take such measures as may be deemed necessary to permit its competent authorities to give effect to an order of confiscation issued by a court of another state party. This article also provides for the provisional freezing or seizing of property where there are sufficient grounds for taking such actions in advance of a formal request being received.

Article 60 deals with international cooperation for the purpose of confiscation. Many of the provisions deal with submission of the requests, but they place a positive obligation on the requested state to take measures to identify, trace and freeze the proceeds of crime. Article 60 hence requires each state party to furnish copies of its laws giving effect to this article and any subsequent changes to the UN Secretary General.

Article 61 deals with repatriation of assets. It sets out the requirement for requested state parties to return embezzled public funds to the requesting state parties, though the concept of restitution has led to considerable difficulties in the past.

Under article 61, the requesting state party is required to furnish reasonable proofs to the requested state in order to establish its ownership of the confiscated property.

This provision is, again, similar to the existing procedures in Switzerland which enable the Swiss criminal courts to confer “damaged” status on a civil party (including states). This allows the Swiss criminal court to order confiscation of assets and repatriation to the “damaged” state.

The provisions of article 65 address many core issues associated with abuse of office, lax banking controls and use of off-shore banks.

The articles 66 and 67 deal with measures for the recovery or seizure of looted property through global cooperation to encourage states to ensure that their domestic law permits courts to make criminals pay compensation to nations which have been harmed by the offences under scrutiny.

Under article 67, the requested state can take action simply on the grounds of reasonable belief without even the necessity for a freezing or seizure order being issued by the competent authority in the requesting state.

This provision envisages a situation which is far closer to the position in Switzerland, where prosecuting magistrates already take action to freeze assets on the basis of reasonable belief without the necessity for court orders in the requesting states.

Article 68 provides that each state party shall endeavour to take measures to forward information on illicitly acquired assets to another state party without prior request, when it considers that the disclosure of such information might assist the receiving state party in initiating investigations which might lead to a request by that state party. This provision tracks the setting up of financial intelligence units to facilitate exchange of information on money laundering.