By Senator Rehman Malik
In view of the developments regarding Pakistan’s trial under FATF over allegations of money laundering and terrorist financing, I, as Chairman Senate Standing Committee on Interior, have examined this matter at depth legally and I would like to state these facts regarding the illegal acts of FATF for the government to take notice to get out of blackmailing of FATF. I would leave it to the public/experts to judge the facts.
I am making an open appeal to the International Court of Justice against the surmised role of FATF as a financial observer of world states. The appeal is being made in accordance with Article 36(1) of the Statute of the International Court of Justice (ICJ) and Article 38 of the Rules of Court (ICJ), against the Founders of the Financial Action Task Force (FATF), namely member countries of the Group of 7, commonly known as G7.
Pursuant to Article 41 of the Statute of the ICJ, this appeal includes a request that the Court indicate provisional measures to protect the rights invoked herein from imminent and irreparable loss. I will also file this appeal/petition in the International Court of Justice (ICJ), The Hague, to question the legitimacy of the Financial Action Task Force (FATF) and its assumed role of “watchdog” as mentioned on its official website. As claimed by FATF, it is an intergovernmental organisation founded in 1989 on the initiative of G7 to develop policies to combat money laundering. However, in 2001, its mandate expanded to include terrorism financing. Since 2008, FATF has, at the behest of G20 leaders, instilled a more analytical process of identifying jurisdictions deficient in their money laundering and anti-terrorist financial regime. According to the website, FATF monitors countries to ensure implementation of FATF standards and to hold them accountable. Through this assumed jurisdiction, FATF has developed mainly two lists, commonly known as ‘Grey List’ and ‘Black List’. The countries committed to implement FATF standards but lacking complete implementations are placed in the grey list subject to continuous evaluation of the pace and seriousness in the implementation of the action plan. The “Call for Action” list (popularly known as the Black List) contains the “Non-Cooperative Countries on Terrorism (NCCTs). Once a country is placed in the “Call for Action” list, FATF “calls on all members and calls and urges all jurisdiction to apply enhanced due diligence, and in most serious cases, the countries are called upon to apply counter-measures to protect the international financial system from the ongoing money laundering, terror financial and proliferation financial risks emanating from the country”. The term “Non-Cooperative Countries on Terrorism (NCCTs) has already invited severe criticisms by the leading financial experts which have termed it misleading because those countries either simply lack of infrastructure or resources to cope with sophisticated financial criminals.
Admittedly, FATF was founded by members of the G7 “to develop their own business interests and policies to combat money laundering” and not for policing other countries like monitoring and holding accountable those countries which failed or made less progress to implement these policies. Therefore, FAFT is a tool of the G7 and then G20 to pressurise developing countries to become economically subservient to them. The jurisdiction of monitoring and holding accountable developing countries with fragile economies was assumed by the FATF on its own.
The recent UN Security Council Resolution 2462, dated March 28, 2019, although recognised the essential role of FATF and urged member states to implement FATF recommendations, yet it did not authorise the FAFT to “monitor” or hold “accountable” the countries policing which do not implement its recommendations.
The language of the Resolution clearly indicates the intentions of the UN Security Council while drafting and adopting the Resolution. It underscores the central role of the United Nations, its Security Council in the fight against terrorism and then stressed the role of the FATF “in setting global standards for preventing and combatting money laundering, terrorist financing…” The Resolution, however, did not authorise the FATF to assume the role of Analytic Support and Sanctions Monitoring Team constituted by the UN. The Resolution although urged the Member States to cooperate with the FATA yet it did not mandate FATF to assume any role of a watchdog, as claimed by FATF on its official website.
The plain reading of the said Resolution would not lead anyone to believe that the UN Security Council through its Resolution had mandated FATF to carry out any monitory of the Member States of the UN. The monitoring or penalising any Member State for its failure to comply with the Resolutions of the UN Security Council is the jurisdiction of the UN and not an organisation created by a group of few developed countries, which these countries use to pressurise the developing countries to their advantage and/or to put the fragile and developing economy of those countries under negative and devastating zones. Cases of money laundering and terrorist financing can be taken up by organisations like INTERPOL and the United Nations through their resolutions directing the respective governments to reform their money laundering or terrorist financing laws or bringing in new laws if they are found deficient in any legislative measures.
The response of President FATF to the letter written by me in my request to initiate action against PM Modi is as under:
“Dear Senator Rehman Malik,
Thank you for your letter of 14 February regarding the Indian Prime Minister, Narendra Modi. I am replying to you on behalf of the FATF President on this matter. The Financial Action Task Force (FATF) is an inter-governmental body whose purpose is the development and promotion of national and international policies to combat money laundering and terrorist financing. The FATF is therefore a ‘policy-making body’ created in 1989 that works to generate the necessary political will to bring about legislative and regulatory reforms in these areas. The FATF has no investigative or prosecutorial functions, and is not in a position to give a legal opinion on this situation. If you are aware of a case that you believe may be related to money laundering, you should contact the appropriate authorities.”
As a parliamentarian and citizen of Pakistan, I have requested to invoke the jurisdiction of the International Court of Justice to determine the legality of FATF to attack on the sovereignty of Pakistan by threatening it to be placed in the Black list. The International Court of Justice may like to determine the laws under which FATF, an inter-governmental body of G-7, can pressurise a sovereign state to implement its recommendations, failure of which state would be placed in the ‘Call to Action’ list.
It is pertinent to mention here that it is in my personal knowledge, as being the former the Interior Minister of Pakistan, that most of these changes in the laws were requested by USA during the peak of ‘War on terror’, which Pakistan had declined, as they were against national interests.
The USA had also approached at that relevant time for access into the National Database of National Data Registration Authority (NADRA) and all the data of passengers travelling from Pakistan which was also declined by the undersigned as it was the national asset and nobody has the right to go into the national assets of a sovereign country.
The Charter of the creation of FATF is enclosed at Annexure – ‘B. A letter from the President FATF dated 18th February, 2019,is also enclosed as Annexure ‘C’ wherein he himself had clearly admitted that FATF cannot undertake any investigation and if FATF cannot undertake investigations, then how can FATF declare any country as Grey or Black listed?
In view of the facts and position explained above, FATF is working illegally to investigate terrorist financing and money laundering.
It is, therefore, prayed as under:
a) All the investigations done by FATF w.e.f. 1989 may be declared as null and void without any force or law.
b) The FATF may be directed to indicate the international laws under which it has been undertaking punitive actions against member states of the United Nations.
c) Action through UNO and Interpol be initiated against all those countries, individuals who have undertaken this glaring illegal act of assuming the power of investigation to blackmail the under developed/developing countries for the reason best known to them.
d) All investigations carried out against Pakistan and decision of FATF may be declared as illegal, null and void, especially keeping in view the President FATF letter in response to the latter of the undersigned.
e) I along with my lawyer, be given a chance to be heard in this matter to explain further the design of IMF and these countries which should be fully discussed enabling the world to know the motives of FATF/IMF for developing countries.
f) FATF should also bring the details as to how many countries in the West have been instructed to make changes in their laws like the directions issued to Pakistan and other seven countries, as money laundering and terrorist financing is a trans-national crime as declared by the International body of Interpol in its Charter.
The opposition and government are both working on the directions of FATF in the greater national interest to avoid the hanging sword of black listing on our country.
The people of Pakistan request that FATF must not further damage our country otherwise we reserve the right to claim the damages from FATF in view of the above explained legal position. It is also for the Pakistani authorities to use these legal arguments during the next meeting of FATF. I hope the people of Pakistan will have the background knowledge of discriminatory actions of FATF.
(The writer is former Interior Minister of Pakistan, Chairman Senate Standing Committee on Interior and Chairman of Think Tank “Global Eye”. He is the author of four books and his fifth book is about to get published. He can be reached at: firstname.lastname@example.org, Twitter @Senrehmanmalik)