Explained: Grey list of FATF

Reading time: 6-8 minutes.

Pakistan, over the years, has been involved in various activities that promote terrorism. One of the most popular actions followed by Pakistan is terror funding across the globe. To combat these terror funding policies of Pakistan, it was put on the ‘grey list’ of the Financial Action Task Force (FATF) in June 2019 and had to comply with 27 actions till October 2019 to come out of the grey list. Pakistan was able to comply with only five actions and therefore an extension till February 2020 was given.

At the plenary meeting of FATF in Paris from February 16-21, 2020, it is to be decided whether Pakistan will remain on the grey list or move to the white list. As per the sources, Pakistan will likely continue to remain in the grey list of the FATF as it is still not complaint of 13 of the 27 actions put forward to it.

Significance of the development

It is to be noted that Pakistan has been funding terror groups like the Lashkar-e-Taiba (LeT), the Jaish-e-Mohammad (JeM) and the Hizbul Mujahideen which are responsible for causing a series of attacks on India and thus spreading terrorism across the globe. The FATF laid down an action plan comprising of 27 actions that Pakistan had to comply with to combat the terror funding practices. Even after being given an extension Pakistan has complied with only 14 of the 27 actions, most of which are money laundering actions and not combating terror funding.

The main objective behind keeping Pakistan in the grey list is to stop funding to terrorist organizations. The economy of Pakistan is already in a slump and if it is continued to be on the grey list, it will force Pakistan to take action against the funding to terror organizations like the LeT and the JeM.

If Pakistan continues to act in the same way as it is doing today, it might as well be placed in the black list by the FATF. To avoid a lot of pressure at the plenary meeting, Pakistan just a week before the meeting, sentenced the LeT chief Hafiz Saeed on terror financing charges and arrested him. This action was taken on the eve of the plenary meeting which is an important point to be noted.

The efficacy of this decision will be noted only after the plenary meeting is over. However, the most important thing that has to be taken care of is that whether Pakistan would take similar actions against other terrorist entities operating under its control or not.

FATF: Powers and functions

The Financial Action Task Force (FATF) is an inter-governmental body established in 1989 by the Ministers of its Member jurisdictions. The FATF is a body that promotes and develops policies to protect the global financial system from misuse by terrorist organizations and other miscreants.

The main objective of the FATF is set standards that promote effective implementation of the legal, regulatory and operational measures to combat international problems of money laundering, terrorist financing and other threats to the international financial system. The FATF makes policies that work towards generating the will to bring about a change in these areas.

Therefore, it can be said that the FATF is a policy-making body that gives recommendations and suggestions which are recognized as an international standard for combating various problems like money laundering, terror funding, and proliferation of weapons of mass destruction.

the FATF currently comprises of 37 member jurisdictions and 2 regional jurisdictions that represent the major financial centers in all parts of the globe. India became a member of the FATF in 2010. Preventing money laundering is one of the most important functions of the FATF.

The FATF monitors the progress of its members in implementing necessary measures to combat money laundering and reviews the terrorist funding activities and gives measures to promote the adoption and implementation of such measures globally. The FATF’s decision making body meets three times in a year and the meeting is known as the FATF Plenary Meeting.

Grey list of the FATF

The Financial Action Task Force (FATF) has two types of lists: Black List and Grey List. Countries that support terror funding and are rigorously involved in money laundering activities are placed in the Black List. These countries are considered to be non-cooperative in the global fights against terror funding and money laundering.

The Grey List is not as severe as the Black List. The countries which are not considered as a safe heaven for supporting terror financing and money laundering activities are included in this list. The placement of countries in the Grey List serves as a warning to them that they might be included in the Black List and they are given a chance to combat these problems and mend their ways. If the country fails to curb the practices of terror funding and money laundering it is transferred from the Grey List to the Black List.

Significance of being placed in the Grey list

When a country is placed in the grey list, it faces various international problems like denial of getting economic sanctions from organizations like the International Monetary Fund, World Bank, ADB, and other countries.

The country also faces an issue in getting loans from international institutions like IMF, World Bank, ADB, etc and this causes a slump in the economy of the country.

The country also faces an overall reduction in international trade which comes as a direct consequence of the international boycott.

When a country is placed in the grey list and faces these problems, it puts a pressure on the government of that country to act quickly to combat terror funding and money laundering so that they can preserve the economy of their country which if the same continues would fall and lead to various internal problems like inflation and scarcity of resources.

Although the FATF is only a task force and not an international treaty that could make its measures binding on the countries, it is listing of any country harms that country as the country then struggles to gain financial support and international support and it becomes difficult for that country to survive in the international arena.

Conclusion

The Financial Action Task Force (FATF) is an organization that is working effectively to control the money laundering activities and terror funding to ensure that the international finances do not falter and the safety and security are maintained. The black list and grey list are very effective in bringing about a change by making countries work harder towards achieving international peace and solidarity. As we have seen in the case of Pakistan, the country has been given several extensions and after the completion of every extension period, it is completing more and more actions towards ensuring the combating of terror funding.

It can be concluded that once the economy of a country comes under threat, the country will work as much as it can to ensure that it is not involved in activities that can stop the loans and sanctions due to their actions.

The FATF is a great policy-making organization and its recommendations are bringing a change in the current scenario of terror funding and money laundering.

Author: Nivedita Guliani from Symbiosis Law School, NOIDA.

Editor: Tamanna Gupta from RGNUL, Patiala

Explained: Death Penalty to Parvez Musharaff

Reading time: 6-8 minutes.

On December 17, 2019, a special court of the Supreme Court of Pakistan awarded death sentence to former military general and ex-president of the country Pervez Musharraf for the offence of “high treason”.

The court’s ruling was based on the finding that Musharraf had imposed an “extra-Constitutional” emergency on November 3, 2007. The effect of such declaration of emergency in Pakistan had been that hundreds of top judges were placed under house arrest or dismissed, triggering nationwide demonstrations from lawyers. Therefore, Musharraf’s 2007 declaration of emergency could not be offered the protection of the Constitution.

The offence of high treason is provided in Article 6 of the Constitution of Pakistan, which reads as follows:

Any person who abrogates or reinstates or suspends or attempts to abrogate or subvert or suspend or suspend the Constitution by force or coercion or by any other unconstitutional means shall be guilty of high treason.”

(It is here pertinent to note that Article 6 was inserted in the Constitution of Pakistan by the 18th Amendment in the year 2010. This fact is important as the offence of high treason was therefore not in existence when Musharraf declared the emergency, but was subsequently inserted as a punishable offence. Hence, the law was applied retrospectively to arrest and convict Musharraf.)

In the case of Federation of Pakistan v. General (R) Pervez Musharraf , a three-judge bench comprising of Chief Justice of Peshawar Waqar Ahmed Seth, Justice Shahid Karim and Justice Nazar Akbar found Pervez Musharraf guilty of High Treason.

The decision was passed in 2:1 majority; the dissenting judgement came from Nazar Akbar. In a 167-page Judgement, the Court awarded death penalty to Musharraf on account of five charges framed against him.

The court also noted that in Pakistani law, death is the only penalty for high treason. According to the 1973 High Treason Punishment Act, death or life imprisonment is the penalty for high treason.

The Court also directed in the verdict to law enforcement agencies to ensure that if, the concerned  person is found dead before execution, his corpse be dragged to the D-Chowk, Islamabad and be hanged for three days. After which Pakistan army slammed the trial and its spokesperson regarded, the words used in the written order as beyond humanity, religion, culture and any other values.

Imran Khan’s Goverment has decided to file a reference against Chief Justice of Peshawar High Court Waqar Ahmed Seth for his remarks in the verdict about general’s corps be dragged and hanged.

Musharraf has denied all the allegations stating that ‘I have been victimized’ and the case is based on ‘personal vendetta’. Musharraf currently undergoes medical treatment at a hospital in Dubai. As he is on a self-imposed exile and can lay appeal in the higher Court, the chances of his extradition or implementation of this verdict is unlikely.

Background

Musharraf gained national eminence when he was made army’s general and led Kargil infiltration in 1999. In no time contentious relations started between, then prime minister of Pakistan Nawaz Sharif and army general Pervez Musharraf. Sharif tried to remove Musharraf, in retaliation to which army staged coup d’etat, which led Musharraf being the President of Pakistan in 2001.

Musharraf who seized the power in 1999 through a military coup, which was facing a widespread public backlash. The fear of public opposition and Supreme Court ruling against the presidential elections led him to impose an emergency on November 3, 2007, citing the reason of it to be enervated judiciary and high threat from militant attacks. He claimed that the imposition was necessary considering ‘national interest’.

For a period of 4 months, all civil liberties, human rights and democratic processes were suspended. The final years of his reign were characterised by fighting against the courts over his desire to remain head of the army while becoming president. He also detained a number of judges and issued provisional legislative orders to uphold his regime. Strong public resentment, creeping Talibanisation and rising US pressure caused Musharraf to succumb and finally resign.

On July 31, 2009, the Supreme Court of Pakistan ruled that the emergency imposed was unconstitutional under Article 279 of the Constitution of Pakistan and declared the steps in declaring the state of emergency to be null and void, and adjudged the removal of judges to be unconstitutional and illegal. Musharraf refused to answer charges against him and fled to the UK.

The case against Musharraf

Musharraf in 2013 returned to Pakistan to participate in that year’s general elections but was then booked for treason and was disqualified from participating after warrants were issued against him. He was accused of high treason under Article 6 of the Constitution of Pakistan, 1973.

The court held that he should be apprehended from Dubai and must be hanged by neck till he dies and if found dead before being executed his corpse to be dragged and hanged for three days.

To proof the jurisdiction to pass this verdict, the court relied on the previous ruling of Pakistan Supreme Court in Lahore High Court Bas Association v. General (R) Pervez Musharraf. Though the word high treason is not defined in Pakistan’s constitution, the court relied on its dictionary meaning. Also, the retrospective application after the insertion of article 6 is disputable.

It can be no coincidence that the decision came in haste just 2 days before the retirement of Chief Justice Asif Khosa, who gave a green flag to the special court to pass the verdict in absentia.

Explaining the Charge – What is high treason?

In UK, the crime of disloyalty to the crown is known as high treason. In earlier times high treason was separated from petit treason, and was considered as the most serious offence subjected to extraordinary punishments.

High treason offences were generally related to the sovereign and its subjects while petty treason was of any sub-ordinate relation, such as, in a master-servant relationship, of a bishop and a clergyman, of a husband and a wife etc. In 1828 petit treason ceased to be a distinct offence and high treason is today referred simply as treason.

Sir Edward Coke, Baron de Montesquieu, Sir Matthew Hale, and Sir William Blackstone regarded the highest of offences to be treason and declared it needed to be precisely defined in order to prevent governmental abuse.

Similar laws in India

While treason is not explicitly defined in Indian law, it is included in State offences (under sections 121-124A IPC). In the case of Ram Nandan v. State of U.P., the Hon’ble High Court held that section 124A enforced restrictions on free speech which are not in the general public’s interest and therefore proclaimed 124-A to be unconstitutional.

However, in the case of Kedarnath Das v. State of Bihar, the Hon’ble Supreme Court overturned this judgment and upheld Section 124-A as valid and constitutional. Generally defined, in so far as it disturbs public order, all offences are against the state or government.

However, there are certain illegal acts that are aimed against the state’s very existence, some of which are treason, espionage, and revolt. Treason is the offence of betraying a state by actions that are perceived to be dangerous to its protection, such as selling military secrets to a foreign power, aiding the tyrant in wartime, etc.

Treason is also explained in the 43rd Law Committee report, explaining offences against national security as an expression that is generally applied in its narrow and limited sense to those very severe offences that explicitly and recklessly affect the security and competence of the Country.

Conclusion

While some regard this judgement as a historic decision to curb military influence and to destabilise Pakistan’s military establishments as profit making companies and see this verdict in the light of a means to recognise supremacy of constitution and rule of law in Pakistan.

Contrary to this opinion, others do not relate this matter with constitution or justice but an ongoing hustle between the two institutions craving for power and dominance. Pakistan Army Spokesman Maj Gen Asif Ghafoor was quoted as saying, “The due legal process seems to have been ignored including constitution of special court, denial of fundamental right of self-defence, undertaking individual specific proceedings and concluding the case in haste.”

Therefore, the Court in issuing the hasty judgement and order, had failed to ensure the basic rights of the accused, as provided by the Constitution. Nevertheless, the conviction against Musharraf is significant for Pakistan, as it sets a precedent for governance.

Since the inception of democracy in Pakistan in 1970, this is the first time that a military leader has faced any kind of accountability by public as well as judicial resentment. Such an unprecedented event is surely the avant-courier of a new political age for the country.

Authors: Aryan Parashar from National Law University Odisha and Muskaan Verma from Alliance School of Law, Bangalore.

Editor: Anna Jose Kallivayalil from NLU, Delhi.

All You Need to Know About the Kulbhushan Jadhav Verdict

Reading time: 3-4 minutes.

Kulbhushan Jadhav is an Indian name that has been in vogue in the international arena for about 3 years now. International Court of Justice (ICJ) announced its verdict on the Jadhav case today (17th July) in India’s favour. This event raises several questions in our minds like what is the background of this issue? What does the judgement mean? Is Jadhav safe now? This post is an attempt to address these doubts.

Where, how and when did it all start?

Kulbhushan Jadhav is a former officer of the Indian navy. In March 2016, he was arrested by Pakistani agencies which accused him of being “an Indian spy”. They formally informed India about the arrest a few days later. Acting according to international customs, India demanded consular access to Jadhav. Pakistan denied 16 such requests.

Consular access, in essence, means the ability of people to have access to embassy officials of their own country in a foreign nation. The Veinna Convention of 1963 (of which Pakistan is a signatory) allows foreign nationals who are arrested or detained in host countries to have such access. This enables the arrested persons to get legal assistance. By denying the same, Pakistan violated International Law.

Pakistan claimed that Jadhav was arrested in Balochistan, Pakistan. However, India has firmly maintained that he was detained in Iran while on a personal business there. Fast forward to April 2017, a Pakistani military court conducted his trial in ambiguous circumstances and sentenced him to death. Jadhav was found guilty of espionage (gathering confidential information through illicit means) and sabotage (interfering with the national defence of a country).   

What steps did India take to protect its citizen?

India approached ICJ promptly in May 2017 and denied Pakistani claims about Jadhav being a spy. India termed it an “imaginary lie” and asked ICJ to issue an order to Pakistan to release Jadhav. The main argument was that Pakistan denied consular access to Jadhav during his trial and awarded him a death sentence.

India demanded that Pakistan should not be allowed to try Jadhav again even after granting consular access because Pakistani military courts “do not satisfy the standards of due process”. In response to these submissions, Pakistan stated that “Vienna Convention does not apply to spies”. ICJ evaluated all such arguments and gave its judgement in favour of India, which we shall now discuss.

What is the verdict of ICJ?

Salient features of the judgement are:

  • There will be review and reconsideration of death sentence awarded to Jadhav by the military court.
  • India will have consular access to Jadhav. It means that he can be provided with legal assistance.
  • Jadhav won’t be released, but he will get a fair trail as per the constitution of Pakistan.

What is the probable future for Jadhav?

It is clear that Jadhav won’t be released by Pakistan any time soon. However, it is a great relief that ICJ has directed Pakistan to suspend and review his death sentence. He will also get legal assistance from India which means that he has a greater chance of coming home now than earlier.

Renowned Senior Advocate Harish Salve, who fought the tough legal battle for India at ICJ, has stated that Jadhav will be informed about his legal rights. Salve also assured Indians that Jadhav won’t be executed. These developments are definitely a ray of hope for India and we are confident that justice will prevail.