TORs ON PANAMA PAPERS
Opposition TORs: WHEREAS the disclosures termed as PANAMA PAPERS have revealed that family members of the Prime Minister of Pakistan Mian Mohammad Nawaz Sharif, along with several other Pakistani nationals, have been maintaining offshore bank accounts and interests in offshore companies, investments and properties and other assets outside Pakistan, which they have not declared to any official authority in Pakistan;
AND WHEREAS such accounts, properties, assets, companies and investments appear to have been opened, incorporated, registered, made and/or acquired through undeclared sources, funds and means and, prima facie, to evade tax as well as scrutiny, accountability and liability under Pakistani law;
AND WHEREAS repeated public explanations and statements of the PM and members of his family have been manifestly contradictory inter se, and have raised more doubts and questions than they have answered;
And WHEREAS the Panama Papers revelations have brought Pakistan into disrepute globally by naming the Prime Minister’s family and other Pakistani nationals and have raised questions about the legality and propriety of their assets held abroad and in offshore companies;
AND WHEREAS it is necessary for the efficient and transparent functioning of the Government and the restoration of the image, honor and prestige of the country that all shadow of doubt be removed from the names of the PM, his family and other Pakistani nationals;
And WHEREAS the Prime Minister as the head of the executive has all the state investigative agencies under his control and hence the need for an independent Commission for across the board accountability;
1. Definitions:
a. Act shall mean the Panama Papers (Inquiry and Trial) Act
b. Commission shall means the Commission appointed under the Act
c. Prime Minister shall refer to Mian Muhammad Nawaz Sharif.
d. Family members shall mean and parents, spouse(s), sons and daughters and grand children
e. Respondent shall mean a Pakistani named in Panama Papers including the Prime Minister
2. The Commission shall inquire into the following questions arising out of the disclosures from PANAMA papers:
(i) What properties are held beneficially, benami or otherwise bought and sold by the Respondent and his family members during the period 1985 to 2016?
(ii) What sources of income were available to the Respondent and his family during this period?
(iii) What bank accounts were these funds kept in?
(iiii) Were the Respondent and his Family members not required to pay Income Tax in Pakistan for such incomes?
(v) On which date and through which banks were the funds utilized in the purchase of the properties abroad?
(vi) Lifting the veil of incorporation, who was the person(s) from whom the aforesaid properties were purchased?
(vii) It shall further be probed as to when were the properties purchased by the seller and with similar disclosure of bank and income tax statements of the seller.
(viii) Where a Respondent himself admits ownership of any properties abroad, what other properties, assets or interests did the Respondent or members of his family acquire by payments made from bank accounts from which the disclosed properties were purchased by the Respondent?
(ix) Is the accretion and acquisition of assets commensurate with the Income Tax paid year wise by the Respondent and his Family since 1985?
(x) Whether opening, maintaining and operating offshore accounts by or on behalf of the Respondent and members of his family or being beneficiaries of such accounts could be regarded as legal or proper for him and/or his Family?
(xi) Whether the Respondent and his Family are required to disclose money trail/transfer of funds into their offshore accounts and money trail/transfer of funds out of such accounts for purchase of properties or other investments in foreign countries?
(xii) Whether the Prime Minister or his Family during their stay abroad from December 2000 onwards was State Guests on behalf of Pakistan?
(xiii) Whether any property, gifts or amounts received by them during that belonged to the State of Pakistan and were liable to be deposited in the State Exchequer?
(xiiii) Whether a Respondent by concealing the ownership and source of income through which the properties were procured, and concealing them in the nomination papers during the previous elections or before relevant tax authorities, has committed corrupt and illegal practices under the election/tax laws?
(xv) Whether all transfer of funds, purchase of assets and all other investments and transactions can be chronologically reconciled by the Respondent or his Family?
3. A Special Law titled “PANAMA PAPERS (INQUIRY AND TRIAL) ACT, 2016” be passed to facilitate the investigation into the assets, foreign and domestic, of the Prime Minister and all other Pakistanis named in the Panama Papers, which shall be formulated with the consensus of the Opposition and shall contain provisions for:
a. A special Commission headed by the Chief Justice of Pakistan and comprising of two other Judges of the Supreme Court of Pakistan to be nominated by the Chief Justice.
b. The Commission may appoint a committee of experts (hereinafter referred to as the “Committee”) in international forensic audit to carry out an exhaustive investigation and audit into the offshore companies and their accounts owned by the Respondent and his family including all transactions, sales and purchases of all assets, moveable and immoveable, including stocks, shares, debentures and equitable or benami interests, opening and operation of all bank accounts, including offshore bank accounts and incorporation of all companies including offshore companies whether directly or behind corporate veil(s) wherever in the world they may be.
c. It shall be the critical duty of the Committee to verify the money trail, which provided funds for such offshore companies and the consequential payments out of such funds for investments and other financial transactions.
d. The Commission shall direct the Respondent to give a mandatory authorization by an irrevocable general power of attorney empowering the Committee and/or its designated members, to lift all corporate veils, access all bank accounts, offshore companies and accounts, stock exchange accounts, corporate registers including registers of shareholders and directors, land and estate records (by whatever name or nomenclature called in any given jurisdiction), and the facilitation of the Committee/Member by the Respondent by any other means that may be required by any foreign jurisdiction, governments, authorities or officials concerned and such facilitation may include the signing of any documents, forms, applications, requests or authorizations required;
e. The Act shall provide for an irrebuttable presumption of guilt in the event the Respondent refuses or fails to give the authorization or extend the facilitation referred to in clause (d) above;
f. A presumption, [in line with the Prevention of Corruption Act 1947, the Ehtesab Act 1997and the NAB Ordinance 1999], that once ownership of the Respondent or his Family of an asset or interest is proved, or admitted, (whether as banamidar, beneficiary or trustee or in any other capacity), the burden of proving that it was lawfully acquired through legitimate sources, funds, and a lawful mode, shall be on the Respondent;
g. In case a Respondent and his Family omit to extend fullest cooperation to the Committee or if they are unable to rebut the presumption that the assets were not acquired through legitimate sources, funds and means, the Commission shall direct them to forthwith liquidate and bring those assets and funds to Pakistan where the State shall forfeit them.
h. Before the Commission enters upon any Inquiry, the Respondents (starting with the Prime Minister his Family as volunteered by himself) shall place all and complete information of all their worldwide moveable and immoveable assets and interests in properties, benami, beneficial, offshore or otherwise held at any time since 1985 along with full details of the Income
Government TORs:
The Commission of Inquiry shall have the following Terms of Reference:-
(1) to examine information relating to: -
(a) involvement of Pakistani citizens, persons of Pakistan origin and legal entities in off-shore companies in Panama or in any other country; and,
(b) involvement of former and present holders of public office in:-
(i) writing off their own bank loans or those of their immediate family members through political influence; and,
(ii) transfer from Pakistan of funds which have originated from corruption, commissions or kickbacks;
(2) to determine whether, in any case referred to in (1) (a) and (b) above, any law for the time being in force in Pakistan has been infringed;
(3) in case the answer to (2) above is affirmative, to determine responsibility for such infringement; and,
(4) to make such recommendations as may be deemed appropriate.
3. The Commission shall, in addition to the powers under section 4 of the Act, have all the additional powers under section 5 ibid, including the powers mentioned in sub-paragraphs (1) to (4) below: -
(1) to examine information relating to: -
(a) involvement of Pakistani citizens, persons of Pakistan origin and legal entities in off-shore companies in Panama or in any other country; and,
(b) involvement of former and present holders of public office in:-
(i) writing off their own bank loans or those of their immediate family members through political influence; and,
(ii) transfer from Pakistan of funds which have originated from corruption, commissions or kickbacks;
(2) to determine whether, in any case referred to in (1) (a) and (b) above, any law for the time being in force in Pakistan has been infringed;
(3) in case the answer to (2) above is affirmative, to determine responsibility for such infringement; and,
(4) to make such recommendations as may be deemed appropriate.
3. The Commission shall, in addition to the powers under section 4 of the Act, have all the additional powers under section 5 ibid, including the powers mentioned in sub-paragraphs (1) to (4) below: -
(a) summoning and enforcing the attendance of any person, including a tax expert or accountant, and examining him on oath;
(b) requiring the discovery and production of any documents;
(c) receiving evidence on affidavits;
(d) issuing commissions for the examination of witnesses on documents; and,
(e) requisitioning any public record or copy thereof from any Court or office.
(2) The Commission shall have the powers to require any person, subject to any privilege which may be claimed by that person under any law for the time being in force, to furnish information on such point or matters as, in the opinion of the Commission, may be useful for, or relevant to, the subject matter of the inquiry.
(3) Any officer not below the rank of a gazetted officer, specially authorized in this behalf by the President of the Commission may enter any building or place where the Commission has reason to believe that any books of account or other documents relating to the subject matter of the inquiry may be found, and may seize any such books of account or documents or take extracts or copies therefrom subject to the provisions of section 102 and section 103 of the Code of Criminal Procedure, 1898, insofar as they may be applicable.
(4) Any proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Pakistan Penal Code, 1860.
4. The Commission shall be assisted by all the concerned authorities of the Federal and Provincial Governments.
5. The Commission shall start the inquiry at a place and on a date to be fixed by it and shall submit its report to the Federal Government in accordance with its Terms of Reference.
6. The Cabinet Division shall provide secretarial assistance to the Commission.
