Jan 30

Najam Sethi sues Transparency International Pakistan

Posted on Friday, January 30, 2015 in Legal notice

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USMAN  G.  RASHID
Of Lincoln’s Inn, Barrister-at-Law
LL.M. King’s College London
LL.B. (Hons.) London
Accredited Mediator by CEDR, London
Master Trainer by CEDR, London
Advocate of the High Courts of Pakistan

1 Turner Road, Lahore, Pakistan
Phones +92 – 42 – 372 31795
+92 – 42 – 372 36174
Fax +92 – 42 – 373 62626
Cells 0333 420 0935
0323 420 0935
[email protected]

27 January 2015

Mr. Sohail Muzaffar
Chairman
Transparency International – Pakistan
5-C, 2nd Floor
Khayaban-e-Ittehad
Phase VII
Defence Housing Authority
Karachi

Legal Notice

  1. This legal notice is issued on the express instructions of our Client Mr. Najam Aziz Sethi (the “Client”) who is the most reputed independent journalist in Pakistan acknowledged worldwide and is the only recipient of three top international awards for journalistic courage and professionalism in a decade in South Asia.  Our Client is among the first journalists in Pakistan to have received ‘Hilal-e-Pakistan’ by the Government of Pakistan in year 2011.  We issue this legal notice, for and on behalf of our Client, in response to the false, ill founded, unsubstantiated and malicious remarks and insinuations made in your letter dated 16 January 2015 addressed to The Honourable President of Pakistan (the “Publication”) and circulated to many including Chairman NAB, Federal Tax Ombudsman, Registrar of Supreme Court of Pakistan and electronic media.  Nevertheless copy of the Publication is attached herewith as Annex A.
  2. You have long been spearheading a campaign of vilification of our Client.  The last time you were checked by our Client, through a legal Notice dated 07 July 2014 issued under our hand, you tried taking refuge behind the stereotype of discharging professional obligations and the so called distinction between ‘criticism and defamation’.  Although our Client was convinced that you were not discharging your professional obligations while writing letter to Chairman FBR Tariq Bajwa that was later circulated as a news item / article in Business Recorder on 03 July 2014 titled “Recovery of evaded tax from Sethi: TI-Pakistan Praises FBR Chairman”.  Equally fictitious was your assertion of doing criticism and not defamation, yet our Client showed restraint and did not take the matter to its necessary conclusion.  However, your mudslinging is going on.
  3. The Publication is, as usual, irresponsible, unsubstantiated and libellous in nature constituting defamation.  Despite being a senior man tasked with nabbing corruption, as your claim in the Publication, not only you appeared novice in the field law but even the basic facts forming basis of the Publication were found alarmingly incorrect.  You were absolutely ill informed about legal provisions and their interplay.  Nonetheless you masterly used the incorrect and distorted information and cunningly drafted the Publication maligning our Client, whereas the matter pertained not to Najam Sethi but separate and distinct assesses, with distinct National Tax Numbers, filing their own Income Tax Returns on Regular basis, who are legally responsible for their own deeds.  Yet you wilfully chose to mention our Client’s name in a bid to lower his reputation and undermine his credibility.  The Publication was so ill founded that it had a belittling effect on you and Transparency International Pakistan.  The Publication is maliciously motivated so is vehemently denied.
  4. Since the Publication mala fidely alleges tax evasion by our Client, his wife, Mrs. Maimanat Mohsin (“Mrs. Sethi”) and children so it would not be out of place to mention here that Mr. & Mrs. Sethi are amongst the largest tax payers of Pakistan.  They pay more tax than any other husband-wife team of journalists in Pakistan and probably more than dozens of members of Parliament.  As a matter of fact, they jointly paid personal income tax of Rs.46.3 million (Rupees four Crores and Sixty Three lacs only) from year 2009 to 2013.  In addition, their publishing companies also paid tax of Rs.19.9 million (approximately rupees 2 Crores only) in the last five years.  All their assets have duly been declared to FBR.
  5. Yet trumped-up allegations were levelled by former Federal Tax Ombudsman Mr. Shoaib Suddle (“Mr. Suddle”) using ITOs for victimising our Client, who severely criticized Mr. Suddle for his biased, partial and partisan role during the proceedings and/or inquiry of one man commission constituted by the Honourable Supreme Court to probe into the allegations levelled on Arsalan Iftikhar by Malik Riaz Hussain.  Mr. Suddle, who took strong exception to it and got annoyed.  In a bid to avenge himself, he abused his office and started a campaign to malign our Client and his family.
  6. Mr. Suddle, while abusing his official position as Federal Tax Ombudsman, pressurised the Deputy Commissioner Inland Revenue (DCIR), Audit Circle Zone-II to issue illegal notices to our Client regarding property of his wife situated in the USA.  Mrs. Sethi is separate tax assessee, with distinct National Tax Number, filing her Income Tax Returns on Regular basis, who purchased that property and got it registered on her name along with her husband with a special power of attorney being given to their son to handle the affairs of property.  The property was shown in her wealth statement along with the source of investment within prescribed time.
  7. Under the influence of Mr. Suddle, the DCIR amended the assessment of our Client illegally on his whims rather than law by assessing the property in his hands that investment for property was made by our Client in spite of explanation and evidence to contrary that it was made by Mrs. Sethi.
  8. Being aggrieved by the treatment of DCIR, our Client preferred an appeal before Commissioner Appeals under Section 127 of Income Tax Ordinance 2001.  While the appeal was still pending, the department initiated recovery proceedings unlawfully.  So our Client moved an application to CIR praying that either recovery proceedings be stayed or case be decided expeditiously.  No matter how reasonable the request was, the CIR refused to entertain either of the prayers vide order No.2239 dated 16 July 2013 manifestly under the influence of Mr. Suddle.
  9. Nevertheless our Client fought his case by filing an application before Appellate Tribunal Inland Revenue, where the department was restrained to take coercive measures against our Client vide order No. M.A. (Stay) No. 829/LB/2013 dated 22 July 2013.
  10. Meanwhile an application was sent by our Client to Chairman FBR and Member Legal for change of jurisdiction to any other Commissioner Appeal.  No specific Commissioner was suggested.  Rather it was requested that case may be transferred to any Commissioner whose workload is not heavy so that our Client’s case may be disposed of on earlier basis.
  11. Our Client’s case was decided by CIR (Appeals-I) on points of law in his favour.  The CIR had not at any stage been instrumental in transferring appeal to his Zone as it was transferred by FBR itself.  The Commissioner (Appeals) did not yield to any pressure from and decided the case purely on points of law.
  12. Thereafter the tax department issued notices to Mrs. Sethi and their two children, which were challenged before the Federal Tax Ombudsman on basis of mal administration on 16.07.2013.  In the meanwhile the second appeal by the Department was filed against the decision of Commissioner Appeals before Appellate Tribunal Inland Revenue was decided in favour of our Client and the very basis of issuing notices Mrs. Sethi and their two children stood cancelled.  Yet the FTO gave its findings against Mrs. Sethi and their two children on 18.04.2014, who filed the Review Petition No.17/2014 that too did not find favour with him and was dismissed on 06.11.2014.
  13. Mrs. Sethi thereafter filed a representation before the President of Pakistan under section 14(1) of the Federal Ombudsman Institutional Reforms Act 2013.
  14. Now if you recall the Publication, you would notice that all the references, quotations and citations you gave were of Federal Tax Ombudsman Ordinance 2000 and not Federal Ombudsman Institutional Reforms Act 2013 under which the representation was filed and admitted by the office of the President.  How lamentable!!!!!!!
  15. For your information the Federal Ombudsman Institutional Reforms Act 2013, under which representation before the President of Islamic Republic of Pakistan was made, was published in the Gazette of Pakistan on 20 March 2013, Section 13 deals with the powers given to the Federal Tax Ombudsman to review his orders, which is reproduced;

    Section 13 Review:  (1) The Ombudsman shall have the power to review any findings, recommendations, order or decision on a review petition made by an aggrieved party within thirty days of the findings, recommendations, order or decision.

  16. Section 14 of the said Act allows any person or party aggrieved by a decision, order, findings or recommendations of an Ombudsman may file representation to the President within thirty days of the decision, order, findings or recommendations , which is reproduced;

    Section 14. Representation:  (1) Any person or party aggrieved by a decision, order, findings or recommendations of an Ombudsman may file representation to the President within thirty days of the decision, order, findings or recommendations.

    (4) The representation shall be processed in the office of the President by a person who had been or is qualified to be a judge of the Supreme Court or has been Wafaqi Mohtasib or Federal Tax Ombudsman. 

  17. It is evident from the in the above given law that the Mrs. Sethi and their Children utilized their legal rights in approaching the Honourable President of the Islamic Republic of Pakistan under section 14 of the said Act for relief against the illegal order passed by the FTO.  Needless to reiterate that your contention regarding the representation being time barred is also false and based on ignorance of facts and law.  A watch dog and so unaware, what a waste of resource!!!!  A senior man like you getting his basic facts wrong and raising his whole argument thereon, what a shame!!!!!!!
  18. It is important to emphasise that Representation by the Office of the President was accepted on merits and all the allegations levelled in the Publication are absolutely preposterous, absurd, ridiculous and libellous in character.  Each of these allegations mentioned above has been shown to be false, baseless and bogus by reference to facts and record.
  19. Last time you alleged “tax evasion” against our Client, whereas the case of “tax evasion” had not yet been decided by the tribunal.  As a matter of law, till the decision is announced no “tax evasion” can be established.  Later our Client won that legal battle.  Now our Client maintains that the above was not a mistake but was done with a design.  You intentionally chose to damage the reputation of our Client by wrongly maligning his family members.  The very subject of the Publication reflects your pre-conceived nefarious notions where you, the self proclaimed judge, termed the Representations ‘illegal’.  Then instead of referring parties by their names, you chose to cite name of our Client.  Thus it is libellous Publication maliciously motivated against our Client to injure and lower him in the estimation of right and fair-minded people of society, for which you are solely liable.
  20. Your action apart from damaging the credibility of our Client and his family members, also defames and ridicules the highest Honouarble Office of the Head of the State of Pakistan nationally and internationally.  Your Publication, which has proven to be utterly false and ill founded, did cast so serious aspersions on the integrity of the Office of the President and the senior officers, qualified to be a judge of the Supreme Court or has been Wafaqi Mohtasib or Federal Tax Ombudsman, working therein that Presidential Office had to issue a Press Release to clarify its position.  The amount of uncalled for damage you caused to the Highest Office in Pakistan cannot be measured.
  21. Be that as it may, the office of the Honourable President of Pakistan while hearing representations under Federal Ombudsman Institutional Reforms Act 2013 is performing a quasi judicial function.  The Publication has the effect of influencing the President in discharge of its quasi judicial functions and amounts to contempt.  The very depth of the legal arguments and use of extensive case law clearly reflects that you became a party, an instrument of FTO, and were trying to advance FTO’s arguments in garb of your Publication to get favourable order from the last forum.
  22. Had it being a bon fide effort to ensure the rule and supremacy of law, you would not have circulated the Publication, but ostensibly the purpose was to influence the last forum of appeal and conduct a pre-emptive media trail of our Client to thwart the course of justice so that the Presidency, like FBR officials and FTO in past, is pressurised not to give any relief as per law.  This was a concentrated effort to marginalise our Client.
  23. So our Client has taken serious notice of the utterly false and scandalous Publication that render a distorted and fictitious travesty of facts about our Client with the malicious purpose to defame and disgrace him.  The foregoing Publication was repeated without obtaining any confirmation or verification from any relevant or affected quarters including our Client or Mrs. Sethi.  The falsity of the allegations made in the Publication, its vicious slant against our Client and repetition of such allegations to the point of revulsion reveals a concerted effort under a malicious plan to malign our Client unjustly, without cause and with the sole purpose of defaming him.
  24. The wrongs committed through Publication by yourself, for which according to law you are directly responsible, constitute both civil as well as criminal wrongs.  The act of intentionally communicating false allegations that are derogatory and defamatory in effect constitutes the offence of defamation, which has in fact been committed by the Publication in respect of our Client.  The baseless allegations made in the Publication have injured his reputation, lowered him in the eyes of others and exposed him to ridicule and dislike.  For causing such harm, injury and pain, our Client has a right to be fully compensated by you as the originator of the Publication.  Although a financial award can never adequately compensate the injury and loss of reputation suffered by our Client on account of the defamatory Publication, however, you are hereby notified that our Client claims an amount of Rs.50/- Billion as compensation to partly alleviate his loss and injury caused solely by the illegal actions of yourself.
  25. Without prejudice to the foregoing, in order to acquit yourself of guilt and responsibility for the foregoing illegal actions constituting defamation, libel and slander, you are hereby granted an opportunity by this legal notice to publish a contradiction and an apology for the malicious, fallacious and scandalous Publication herein challenged with the same prominence under headlines with which such Publication had been carried.  Such a contradiction and apology must appear within seven days of the receipt of the instant legal notice failing which our Client may commence, simultaneously or successively, legal actions for civil and criminal remedies against yourself and other persons involved in the commission of such wrongs.
  26. In this case, take this as a notice for initiation of action for defamation under section 8 of the Defamation Ordinance 2002.  Please take note that the contents of the Publication constitute admissions and can be used as evidence against you.

Yours truly,

Usman G. Rashid

P.S.
An original of this legal notice is retained in our chambers for future reference and reliance.

Copy to:

  1. Najam Sethi
  2. Chairman NAB
  3. Federal Tax Ombudsman
  4. Registrar of Supreme Court of Pakistan

 

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Jan 30

Musharraf’s candour

Posted on Friday, January 30, 2015 in The Friday Times (Editorial)

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General (retd) Pervez Musharraf is endearingly candid. In a series of interviews since he relinquished office, he has revealed many nuggets of information and analysis. For instance, at the height of the anti-drone sentiment in the public in 2013 when the government was pretending to be opposed to the drones and the Foreign Office was churning out protests, he calmly admitted that he had secretly given permission to the CIA to use drones in the war against terrorism. He has also rued the NRO deal with Benazir Bhutto because it became a bone of contention with the judiciary and destabilized Pakistan. He laid part responsibility on the Chaudhrys of Gujrat who advised him to concede the NRO but retain the constitutional restriction on anyone becoming prime minister for a third time (doubtless because it suited their political careers).

Now, in a refreshing analysis, he criticizes his handpicked successor as army chief, General Ashfaq Kayani, for not going after the Taliban in Waziristan and contrasts General Kayani’s reticence, which has damaged Pakistan, with the bold and decisive manner in which his successor, General Raheel Sharif, has acted. “You see, the main issue is that when a government is inactive, it requires an army chief to go and coax it into action. That’s what [Gen] Raheel has done. So either Gen Kayani was scared or too reticent or too reserved. He didn’t want to go and discuss this matter.”

He contrasted General Kayani’s attitude with his own while he was still giving the orders: “We acted against Fazlullah and defeated him. Peaceful elections were held in 2008. The turnout was good. The Awami National Party — and not religious parties — came to power in Khyber Pakhtunkhwa. And then Fazlullah was allowed to return and set on fire 13 girls schools. He had the tourist resort in Malam Jabba torched. No action was taken till he crossed the Shangla Hills and almost blocked the Karakoram Highway. When there was international hue and cry that the militants were only 100 miles away from Islamabad, then they woke up… The army was clear in its views as a whole. They wanted action, even in Kayani’s days. Kayani has to be asked why he did not act [against the terrorists].”

That, of course, is the central question. It becomes all the more necessary to get an answer because General Kayani clearly recognized the danger from the Taliban whom he described in a significant speech to passing out cadets as “an existential threat” to the country. In fact, Gen Kayani went so far as to argue that the internal threat of “Islamic” terrorism was far more potent than the external threat (of India), a statement that some viewed as signalling a “paradigm change” in the central strategic vision of the military. Indeed, there was a time when he was on the verge of launching operations against the TTP but pulled back at the last minute after senior American officials let it be known publicly that they had met him and urged him to take military action. It was speculated that he began to drag his feet because he didn’t want to be seen as doing “America’s bidding” in an extremely anti-American environment in Pakistan. In consequence, General Kayani’s inaction for six years enabled the TTP to grow strong and exact thousands of civilian and military casualties, a terrible harvest we are reaping today. This “inaction” also alienated General Kayani from Pakistanis and Americans alike.

General Musharraf has insightful advice to give those who, like the MQM, are clamouring for martial law as the solution to Pakistan’s problems of terrorism. “I don’t think there should be martial law… Pakistan is facing the worst situation in its history. The economy is not doing well. Terrorism is in all the provinces. It has never been this bad. The army is a fall back force in the country. We, in the military, call it a ‘force in being’. Its potential consists in being. If you use it or consume it, it’s gone. If you were to use the military, and suppose in the present situation of turmoil, they are unable to rectify the socio-economic ills of Pakistan, you’d have consumed this fall back force.”

Of course, Gen Musharraf didn’t take his own advice in 1999 when there was no national crisis in the country and he and his colleagues seized power only because their own military careers were on the line following their disastrous adventure in Kargil.

Meanwhile, the government of Nawaz Sharif would do well to heed Musharraf’s words regarding General Raheel Shareef’s decisive moves and action-oriented globe trotting. “It’s not he who’s doing that, it’s those countries who are giving him that stature. The army is the only stabilising institution in Pakistan. That is why they give importance to the military chief. Especially when they also see the degree of bad governance going on [by the civilians)… Look, international relations largely depend on personalities. Agar aap nay ja kay kookro ban kay baith jana hai, to aap ko kya importance milay gi.”

Jan 23

Humpty Dumpty

Posted on Friday, January 23, 2015 in The Friday Times (Editorial)

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The TTP and LeJ aren’t the only ones bombing and terrorizing the people of Pakistan. The PMLN government, it seems, is quite adept at tormenting the people too, the recent “petrol bomb” being a case in point.

Since the government wields monopolistic control over the import, regulation and supply of fuel through the Ministry of Petroleum (MoP), Oil and Gas Development Authority (OGRA) and Pakistan State Oil (PSO), the prime minister, Nawaz Sharif, has pinned responsibility for the criminal mismanagement of petrol supplies in the country on senior officials and bureaucrats in the three departments. But the petroleum and finance ministers have gone scot free despite evidence of negligence and culpability.  Consider.

PSO, which imports the fuel and sells it to private and public sector entities that refine and sell it as petrol or produce electricity from it, is cash strapped because it is owed over Rs 200 billion by various government entities like WAPDA, PIA, KAPCO, etc. Therefore it couldn’t import adequate supplies in December and January. It begged the MoP to request the Ministry of Finance (MoF) to clear its debt. But the two ministers, Khaqan Abbasi and Ishaq Dar, were either squabbling (Dar has nominated an advisor to the MoP without Abbasi’s approval) or too busy doing their own thing (Dar is jetting around the world negotiating loans and aid and launching bonds while Abbasi is upgrading his privately owned Air Blue airline). Both gentlemen were summoned by the prime minister to explain their conduct. Abbasi argues that a spike in consumer demand in January owing to a reduction in petrol prices created the problem. He also claims he was helpless because Dar controls the purse strings and hasn’t responded to several SOS messages sent by PSO and MoP to clear dues of about Rs 50 billion. Dar claims he coughed up Rs 17.5 billion in January but cannot continuously be expected to bail out all the public sector enterprises that are caught in the vicious circle of circular debt caused by their inefficiency and corruption and also abide by the terms and conditions of the aid donors to cut expenditures and reduce the fiscal deficit.

Whatever the merit of their explanations, the public is mad as hell. At the very least, it wants ministerial heads to roll. But that’s not the way the prime minister and Punjab chief minister work. When something goes wrong, the fall guys are always bureaucrats, never ministers. One reason is the overt reliance of the Sharifs on the bureaucracy, rather than the ministers, to run government. Another is the abysmal level of incompetence of most ministers in the cabinet. This is a direct consequence of the prime ministerial system of government that compels the prime minister to appoint parliamentarians (whose “expertise” is limited to buying votes and excelling at corrupt practices) to the cabinet rather than the best subject-experts and technocrats available in the market as under a directly elected presidential system.

In essence, the PMLN government has inherited the problem of circular debt in the energy sector from the Zardari government that didn’t address it in time. But it is also true to say that the Zardari government was caught unawares by the spike in oil prices and the shortsightedness of the previous Shaukat Aziz/Musharraf regime that didn’t enhance the capacity of the energy sector despite a growing economy. The people chucked out Asif Zardari’s PPP at the last elections because of mismanaging the economy in general and electricity shortages in particular. Now they are not likely to forget or forgive Nawaz Sharif’s PMLN in a hurry for the continuing “load-shedding” and petrol shortages.

Many months have passed since Mr Sharif promised to “audit” the performance of the ministers. But the government is still stumbling from crisis to crisis, in the process discrediting one minister after another. Khwaja Asif and Nisar Ali Khan are already on the mat for the deterioration of civil military relations and internal security respectively. Rana Shahnawaz and Shabaz Sharif cannot shake off the Model Town massacre. Ishaq Dar and Khaqan Abbasi have now been tarred by the energy crisis. But, at the end of the day, the buck stops at the prime minister. This is his “dream team” and it has become a “nightmare”. Come election time, and he will have to pay for the sins of omission and commission of his ministers, just like Asif Zardari did for those of his two prime ministers. Incompetence and inefficiency, no less than corruption, is now in the gun sights of the public.

To be sure, Mr Sharif has survived Imran Khan’s destabilizing “dharna”. And he has finally pulled out all the stops to try and deal with the menace of terrorism. But it is the health of the economy that impinges on the suffering and welfare of the people. If Mr Sharif doesn’t pull up his ministers quickly, all the MOUs and IMFs won’t be able to stop Humpty Dumpty on the wall from having a great fall!

Jan 18

Apas Ki Baat 18 Jan 2015

Posted on Sunday, January 18, 2015 in Aapas ki baat with Najam Sethi on Geo


Jan 17

Apas Ki Baat 17 Jan 2015

Posted on Saturday, January 17, 2015 in Aapas ki baat with Najam Sethi on Geo