‘ANTI-CORRUPTION drive’ has been the primary slogan of Prime Minister Imran Khan’s movement for naya Pakistan with the promise of across-the-board accountability to cleanse the system of the proverbial cancer of corruption.
On Sept 17, 2018, a significant step was taken in this direction when Pakistan, led by its law minister, Dr Farogh Naseem, and British Home Secretary Sajid Javid, made a joint justice and accountability declaration. Early details indicate that the joint declaration is aimed at tackling corruption, money laundering, asset recovery and repatriating the looted wealth of Pakistan.
It is hoped that in due course, this declaration will sow the seeds of a detailed bilateral treaty framework of cooperation between the two countries. This joint declaration must be viewed in the context of some important legal developments in the UK which are akin to the latter country having waged its warfare against corruption through legal means.
Pakistan should gain a full understanding of how anti-corruption legislation has evolved in the UK.
Pakistan’s law ministry officials, it is hoped, are taking stock of these unprecedented recent legal developments in the UK. In the context of a broader framework of cooperation against corruption between the two countries, having a better understanding of these legal developments will enable Pakistan to negotiate from a position of strength, and put up a convincing case for the inclusion in the treaty framework of provisions favourable to Pakistan and to be otherwise seen to be playing by the ‘rules of the game’.
These legal developments in the UK must be seen in the context of the strategic weaponising of the law — a recurring theme at both international and state levels. Lawfare — a portmanteau of the words ‘law’ and ‘warfare’ — is the term commonly used to explain this weaponising of the law. The concept is taught at several top-tier US law schools such as Harvard Law School.
The resonance of lawfare as the preferred weapon of choice can be seen in international contexts where adversaries (countries) increasingly resort to the use of legal arguments at international fora to highlight transgressions of international law by the other party. A form of lawfare common in international relations is the passing of Security Council resolutions to penalise states that violate international law obligations.
Similar uses of lawfare can be seen in the domestic context. Governments, civil society and academia in countries are engaged in a constant internal lawfare with one another both as independent actors and as proxies of interest groups. This horizontal (intra-state) lawfare can be seen in many forms and manifests itself across a broad spectrum: legislation tabled with specific policy objectives, lobbying by civil society to pass specific legislation, and courtroom battles on legal issues.
In the context of the UK’s lawfare against corruption, the first step seems to have been taken in 2017. In that year, amendments were introduced to the UK’s Proceeds of Crime Act, 2002. POCA, as originally passed, was a landmark legislation that allowed authorities to act against property where they could prove that it was obtained through unlawful conduct. However, the UK’s enforcement authorities still faced practical difficulties in successfully litigating cases due to lack of cooperation by the state authorities of the accused’s country of origin.
To avoid these difficulties, the 2017 amendments to POCA introduced the concept of unexplained wealth order, or UWO, which is an investigation order issued by the high court upon satisfaction of certain tests. Once granted, the UWO requires an individual to set out the nature and extent of their interest in the property in question and to explain how they obtained that property in cases where that person’s known income did not explain ownership of that property.
Once the UWO has been granted by the UK high court, the individual must respond within a certain time period, and if a reasonable explanation for the wealth is not given, the property is presumed to be recoverable.
Some leading legal jurists have argued that the true impact of UWOs will be seen in the years to come when the courts, faced with applications, decide on the grounds for the issuance of UWOs. As the UK is home to hundreds of NGOs and interest groups, it is inevitable that new legal battlegrounds will emerge in courtrooms as the interest groups vie for issuance of UWOs against individuals accused of hoarding dirty money in the UK. To what extent UWOs prove to be a potent arsenal in the UK’s lawfare against corruption will become clearer in the years ahead.
However, there are lessons to be learnt here for Pakistan whose own lawfare against corruption cannot succeed unless developments in the UK’s lawfare sphere — and those taking place in other countries of interest to Pakistan — are closely followed by the law ministry’s policymakers. Pakistan should gain a full understanding of how anti-corruption legislation has evolved in the UK. What is not permitted or allowed under UK law cannot be agreed to by it in a bilateral treaty framework with Pakistan. Doing the homework now will allow Pakistan to gain maximum leverage during the drafting phase and thus come prepared to the negotiating table.
Besides full awareness of the dynamics of the UK’s lawfare against corruption, Pakistan’s own efforts in this direction cannot succeed unless a robust and all-inclusive mechanism to mirror the bilateral anti-corruption treaty framework is devised. At present, Pakistan does not have an extradition treaty with the UK. If it has indeed agreed to extradite convicted individuals, ad hoc extradition arrangements would need to be replaced by a bilateral extradition treaty. Pakistan’s existing anti-corruption laws may also require amendments to bring them in line with the new bilateral framework.
For the anti-corruption drive under the ‘naya Pakistan’ envisaged by Prime Minister Khan to succeed, it is time that Pakistan’s policymakers take stock of the different forms of lawfare being waged around the globe and weaponise laws effectively to ensure a comprehensive lawfare against corruption.
The writer is a practising international lawyer and a graduate of Harvard Law School.
Published in Dawn, September 29th, 2018