The Supreme Court was informed on Thursday that only the National Accountability Bureau (NAB) had the authority to make efforts for extradition of Hussain Haqqani, a former ambassador to the United States.
Senior counsel Ahmer Bilal Soofi, who was appointed amicus curiae (friend of the court), informed a three-judge SC bench, headed by Chief Justice of Pakistan Mian Saqib Nisar, that NAB could also explore options relating to mutual legal assistance under Section 21 of the National Accountability Ordinance (NAO) to bring the former ambassador home.
On a suo motu, the SC had taken up a case pertaining to steps being taken by the government to ensure implementation of an earlier SC order of bringing Mr Haqqani back home.
On June 4, 2013, a nine-judge SC bench, headed by then chief justice Iftikhar Muhammad Chaudhry, had directed the then interior secretary to adopt legal measures ensuring the return of Mr Haqqani to Pakistan. The court had also hinted at adopting coercive measures in view of the continued refusal of Mr Haqqani to appear before it and honour the commitment he made to come whenever called.
Supreme Court appreciates work done so far for extradition of former envoy
Mr Haqqani was at the centre of a controversy for sending a memorandum allegedly to former US military chief Admiral Mike Mullen, seeking direct US intervention to avert a possible overthrow of the civilian government by the military against the backdrop of the May 2, 2011 US raid on the Abbottabad compound that killed Al Qaeda chief Osama bin Laden.
Later, the SC constituted a judicial commission which had on June 12, 2012 held Mr Haqqani the originator and architect of the memo.
In his submissions, Advocate Soofi explained that Mr Haqqani was facing the offence of breach of undertaking he gave to the SC which amounted to the contempt of court as well as the charge of criminal breach of trust for his failure to account for the funds handed over to him by the government in his capacity as the then ambassador, which related to the charges of misappropriation and embezzlement.
The submissions explain that two agreements deal with extradition of individuals — the USA-UK Treaty of 1932 and the United Nations Convention against Corruption (UNCAC), 2003, which is a multi-lateral treaty. In addition, the domestic law relating to extradition is the Extradition Act of 1972.
But the contempt of court is neither listed as an extraditable offence under the USA-UK Treaty of 1932 nor under UNCAC. This means Mr Haqqani’s default of his own undertaking was not an enlisted extraditable offence under these laws. However, alternative mechanism could still be invoked by serving a formal letter to the US, expressing displeasure of the SC and seeking more cooperation from that country, Advocate Soofi explained.
He said Pakistan could also take the matter on a reciprocity basis as per the state practice with the US since Pakistan had been cooperating to its fullest extent in handing over suspects.
Likewise, the offence of criminal breach of trust was also not expressly listed as offence under Article 3 of the USA-UK treaty. But the criminal breach of trust under Section 409 of the Pakistan Penal Code (PPC) is an offence in terms of Article 17 of UNCAC for which the implementing legislation will deem to be Section 9 of NAO.
Referring to the red warrants of arrest for which the Federal Investigation Agency (FIA) was making efforts through Interpol, the counsel explained, the red notice was not a substitute for extradition.
Though the FIA can continue its effort and pursue the red notice, the extradition process needs to be invoked simultaneously through NAB.
The counsel argued that the FIA had done impressive efforts in the recent past to combat transitional crimes originating or linked with Pakistan and suggested that the Supreme Court also issue comprehensive guidelines for the mutual legal assistance in particular for the FIA so that it could discipline itself and process requests for MLA in several other ongoing transnational investigations like cybercrimes and human trafficking, Advocate Soofi said.
After examining the rules submitted by the counsel, the SC appreciated the work done and the research undertaken and ordered Attorney General Khalid Jawed Khan to submit a reply on behalf of the government. The apex court said the government should consider the matter seriously.