Daily Times

Harrington further argues that the work of trust and estate planners does not just reflect the status quo in global wealth inequality; rather, it actually creates the legal and organizational structures that transform one generation’s accumulated wealth into dynastic privilege. This profession’s (Trust and Estate Planning) legal, organizational and financial expertise gives it a crucial and absolutely irreplaceable role in the creation and maintenance of stratification regimes worldwide. It follows from the above that the role of the advisor, understandably, is to shield concentrations of wealth and economic muscle which arouse alarm, suspicion and public odium; an argument which ties in with the political aspect of the argument that such wealthy individuals are either politicians themselves or they possess considerable clout within the political elite/circles which in turn becomes a direct impediment in making specific laws towards tightening of political/legislative control over such activity.

The fact remains that the profession of trust and estate planning is a serious and destructive attempt aimed at undermining and circumventing most of the relevant laws, regulations and general measures in place to discourage such concentration of wealth whose primary aim is to avoid taxation and ensure intergenerational transfer of wealth. It is not reassuring to note that STEP advisors are taught not to go so far as to give legal, tax or investment advice; rather such an advisor has to understand the advice that he is given by the client, according to Harrington.

Andres Knobel lists the ills that afflict societies worldwide due to, amongst other forms, “abusive trusts” in his work titled, “Weapons of Mass Injustice? (2017)”. He places the Cook Islands (associated with New Zealand) as having some of the most abusive of all regimes (which the local Maori islanders jokingly refer to as Crook Islands). For instance, neither foreign law (e.g. inheritance, marital or divorce provisions) nor foreign judgments can invalidate a trust created under Cook Islands laws. Furthermore, it is impossible to prove fraudulent conveyance since one must, prove beyond reasonable doubt (criminal law standard-which is a lot harder to prove than the normal burden of  proof, say, in civil proceedings) that trust was created with the principal intent to defraud the creditors or claimants. ‘Estate planning’-along with reliance on the defence of privacy–however, is gladly accepted by the system in Cook Islands as the principal intent which is not enough to invalidate a trust.

It is high time that concerns of elder statesmen like former foreign minister Khurshid Mahmood Kasuri raised in an open letter to the incumbent Chief Justice, Asif Saeed Khosa, on the questions of restoring the presumption of innocence till proven guilty in general and on the jurisdiction of the Supreme Court under Article 184(3) in particular are heeded

A New Zealand case of Low Hock v Rothschild Trust [2017 NZHC 25 (HC (NZ))] concerning the 1MDB scandal, demonstrates the power of the Cook trusts involving the ex Malaysian Prime Minister Najib Razak and other Malaysian nationals including Jho Low who, incidentally, is still on the run. Several trusts were set up by the Rothschild Bank group (acting as an estate planner, no less, although Goldman Sachs acted as the major advisor to 1MDB) on behalf of a Malaysian Family which was inevitably linked to 1MDB (1Malaysian Development Berhad) a government owned fund whose only signatory was the Prime Minister-cum-finance minister Najib.

Knobel, while advocating more transparency, is highly critical of the secrecy surrounding such trusts which are camouflaged under layers of shell companies; and, since trustees conduct business like companies, the principle of lifting or piercing the corporate veil does not apply to trusts, an established legal principle in all Western countries (including South Asian countries like Pakistan, India, Bangladesh and Sri Lanka) without exception. As a solution, he includes targeting abusive offshore regimes by blacklisting based on objectively verifiable criteria, such as Financial Security Index, rather than on politicised lists set up by bodies susceptible to influence from powerful countries. In his opinion, trusts created in such places could be deemed invalid, and persons involved could be held in contempt if they refuse court orders by invoking anti-duress and anti-forfeiture clauses. Knobel also argues in favour of taxing trust assets directly since, for example, IHT is levied on the holder of the assets in question and the trust confuses that ownership.

Whereas in the UK, measures taken by the government included the following measures which sound solid and substantive, Pakistani response to the same can at best be described as lukewarm and disappointing. In the UK, Finance Bill 2017 extends IHT to UK property held by offshore trusts, whether the settlor is UK domiciled or not. The Fifth Anti-Money Laundering Directive (5MLD), which will replace Money Laundering Regulations (MLR) 2018,will be incorporated into the UK includes amendments resulting from the Paris and Brussels terrorist attacks, the Panama Papers leaks and new technological additions. The Pakistani state, on the other hand, with its perennially muddled priorities, seems more interested in ousting out of favour politicians than implementing reforms that are urgently needed especially in the light of FATF recommendations aimed at removing Pakistan from the grey list of countries having inadequate and unsatisfactory measures in place for the elimination of money laundering relating to terror related activities.

Let us go back to the point about the $5 billion scam of 1MDB and corruption which became an election issue in Malaysia bringing the 92 year old Mahathir Mohamad back to office. It was an admitted fact and, indeed, quite clear from the facts that 1MDB which was a strategic company wholly owned by the government whose aim was to drive economic growth through joint ventures that bring foreign direct investment into Malaysia, was plundered through the orders of the then PM Najib. Banking records were presented in a corruption trial showing that a whopping nearly $700 million alone went to Najib’s personal bank accounts.

If we compare Najib’s case with that of Nawaz Sharif, it is glaringly obvious that, unlike in the former, in the case of Nawaz Sharif it was neither an admitted nor a proven fact that the Avenfield flats were purchased with embezzled state money. As submitted above, prime minister Najib Razak, who also held the portfolio of finance minister, was the sole signatory of 1MBD and that expensive properties were purchased in the US with the embezzled money on his watch. Whereas the US authorities sued the trusts based in Cook Islands holding those properties, which were acquired in violation of US law, with the aim of invalidating those trusts, the UK government, on the other hand, never took any legal action in, say, the courts of the British Virgin Islands or the Cayman Islands, for example, in order to invalidate the trusts holding the Avenfield flats in London.  That is a crucial distinction and difference between the two cases. Therefore, any attempts on the part of PTI and Imran Khan to make comparisons with Mahathir, who was voted into office on the literally one point election manifesto of Najib’s embezzlement of state money, are not only fallacious but also disingenuous.

One needs no reminding that the Supreme Court while exercising its jurisdiction under Article 184(3) of the Constitution conducted proceedings which increasingly looked like a mini trial by sifting through, discussing & commenting upon relevant evidence in the petition filed against the then prime minister Nawaz Sharif which prejudiced his subsequent trial in the Accountability Court. In an ironic twist to the sordid saga, which is borne out of record, that, during the NAB trial, the prosecutors kept relying on the Supreme Court judgment and the Joint Investigation Team’s (JIT) report, consisting of merely one-sided evidence collected through an equally one-sided fact finding exercise. It has to be said that it is time to repair the damage done and, ideally speaking, the Supreme Court, the Parliament and the all powerful military establishment must carry the mantle in that regard.

There are concerned voices in the legal and political circles which are being rightly raised on the abridging of the constitutional right to a fair trial as provided under Article 10A of the Constitution as a result of the proceedings under Article 184(3), suo moto or upon petitioning. It is high time that concerns of elder statesmen like former foreign minister Khurshid Mahmood Kasuri raised in an open letter to the incumbent Chief Justice, Asif Saeed Khosa, on the questions of restoring the presumption of innocence till proven guilty in general and on the jurisdiction of the Supreme Court under Article 184(3) in particular are heeded. The Supreme Court re-writing the parameters of the said article in the light of the right to a fair trial under Article 10A would be a great step forward.

The writer is Lahore based lawyer

Published in Daily Times, February 2^nd 2019.