Husain Haqqani can be repatriated to Pakistan, SC told

ISLAMABAD: The Supreme Court was informed on Thursday that former Pakistan’s ambassador to United States Husain Haqqani can be repatriated to Pakistan for being charged of criminal breach of trust, misappropriation, cheating and embezzlement.

A three-member bench of the apex court headed by Chief Justice Mian Saqib Nisar and comprising Justice Umer Ata Bandyal and Justice Ijazul Ahsen resumed hearing in a suo motu proceeding regarding Memogate case.

In March, Chief Justice Saqib Nisar took notice of the Memogate case and gave Pakistani government one month's notice to bring back Husain Haqqani, who is the main accused in the scandal.

The court had also appointed Ahmer Bilal Sufi, an expert on foreign litigation, as amicus curie, to assist it in the repatriation of Husain Haqqani. On Thursday, Ahmer Bilal Sufi submitted a complete report along with some proper guidelines for Mutual Legal Assistance (MLA). He suggested that Pakistan may also take up the matter on reciprocity basis for repatriation of Husain Haqqani as per the state practice of Pakistan with the US, as Pakistan has been cooperating to its fullest extent in handing over suspects earlier.

He submitted that as per the case, Husain Haqqani is facing a charge of criminal breach of trust on the grounds that he has failed to account for the funds handed over to him by the government of Pakistan in his capacity as the then ambassador to the US. He said a formal FIR bearing No. (7/2018) dated 10.3.2018 has been registered against him under sections 3, 4, 409, 109 PPC r/w 5(2) 47 PCA.

“This relates to the charge of criminal breach of trust, misappropriation, cheating and embezzlement and the offences under which the said FIR has also been lodged overlaps with the offence of corruption and corrupt practices under section 9(a)(xi) of National Accountability Bureau Ordinance, 1999 (the NAB Ordinance,” Ahmer Bilal Sufi submitted.

He contended that the said offence under 409 PPC and simultaneously under section 9(a)(xi) of the NAB Ordinance is an extraditable offence under article 17 of UN Convention against Corruption 2003 read with Article 44 of the said Convention (which acts as a multilateral extradition treaty between Pakistan and US) and government of Pakistan through NAB can commence process of extradition in respect of the said offence.

He further submitted that the proceedings could commence as per procedure provided under section 15 of the Pakistan Extradition Act 1972. The amicus curie also referred to the other issue that Husain Haqqani has breached the undertaking he gave to the Supreme Court as well as to the special commission, promising to return but breached his undertaking that constitutes contempt of court under Article 204 of the Constitution. He, however, submitted that contempt of court is neither listed as an extraditable offence under USA-UK Treaty 1932 nor under the UNCAC, adding that Haqqani’s default of his own undertaking is not an enlisted extraditable offence under the said two legal instruments.

Bilal however, contended that alternative mechanisms can still be invoked in terms of serving a formal letter upon the government of US formally expressing displeasure of the Supreme Court and seeking more cooperation from the US.

He further submitted that he has also prepared a draft of guidelines that the court may consider approving for FIA to facilitate its transnational investigations in several cases. He said that the proposed draft guidelines are drawn from state practice of MLA in international law and they incorporate provisions specific to criminal gangs and organisations and propose the creation of an MLA directorate within the agency headed by a director of MLA who will be in charge of the same.

He submitted that they also require the FIA to maintain a database of all legal documents, arrangements executed with other states, bilateral agreements, MoUs. The chief justice also inquired the need of such a law for the federal government, to which Ahmer Bilal Sufi stated that ideally such a law should be for the entire state, but for start it can be for one prosecuting agency namely the FIA which apparently needs it the most since its legal mandate includes MLA framework for diverse trans-national crimes.

For example, he said, the FIA is mandated to investigate cybercrimes and preventing human trafficking which also involves culprits from various states, and the FIA also investigates role of criminal gangs involved in transnational crimes and therefore it needs such enabling law more urgently.

The amicus curie recalled that earlier the Supreme Court’s order in human trafficking matter was de facto and the MLA framework facilitated the FIA in human trafficking issue and as a consequence Pakistan was removed from US human trafficking watch list.

The chief justice thanked Sufi for his useful work and appreciated his research on the both the matters. Meanwhile, the court issued notice to the attorney general and NAB to give comments on the draft legislation that was prepared and submitted by Sufi.

Sufi also submitted that enactment of such a law will also improve Pakistan’s credentials in FATF evaluation. It is pertinent to mention here on April 30, a story appeared in The News wherein it was disclosed that the International Criminal Police Organisation (known as Interpol) has turned down the FIA’s request to issue arrest warrants for Husain Haqqani, who is now based in Washington. The News has received an official copy of the Interpol letter that confirms that it has not issued an arrest warrant for Haqqani and that he’s not a person of interest to Interpol.

“The General Secretariat of the International Criminal Police Organisation, Interpol, hereby certifies that as of today (April 18, 2018), Mr Husain Haqqani, born on July 1, 1956, is not subject to an Interpol Blue Notice or diffusion and is not known in Interpol’s data basis,” the letter issued by Interpol’s office of legal affairs says.

The Interpol confirmed it had issued the certificate on the request of Haqqani’s lawyer amid newspaper reports in Pakistan that the DG FIA went to Interpol headquarters in Lyon to seek warrants for his arrest.