ISLAMABAD: All the four foreign documents/ reports acquired by the Joint Investigation Team (JIT) probing the Panama Papers case and presented on the very first page of the report as a major success and ‘critical evidences’ are flawed and based on misunderstanding of the JIT and cannot be termed as evidence anyway.
A perusal of the JIT final report also shows that questions asked from foreign authorities were trickily framed in a way to get only specific answers instead of getting the whole picture of the issue, selected witnesses were examined and key witnesses were ignored and the report was written with a predefined target in mind.
Here are the four critical evidences acquired by the JIT. The first page of JIT final report reads;“Summary of the Investigation:
2- During the course of investigation the following critical documentary evidence has been acquired by the JIT.
(a)- Confirmation of the beneficial ownership of the Maryam Nawaz of BVI companies, namely; Nielsen Enterprises Limited and Nescoll Limited by the Financial Investigation Agency, British Virgin Islands – (Volume V);
(b) Confirmation of Chairmanship of Mian Nawaz Sharif in offshore company namely; FZE Capital, U.A.E. by Jabel Ali Free Zone Authority (JAFZA) - (Volumes VI and IX);
(c) Confirmation of fictitious sale/ purchase agreements submitted to Honourable Court by the Respondents, by the Ministry of Justice, UAE, (Volume III); and
(d) Submission of falsified/ tampered Declarations of Trusts by the Respondents in the Supreme Court of Pakistan and before the JIT, as per report of forensic expert, UK. (Volume IV).
3. Analysis of the aforementioned evidences on the conclusive investigation is discussed at length in the relevant write-ups/ section.”
Here is The News findings on these four major and critical evidences of the JIT report.
1: Beneficial Ownership of offshore companies Nielsen & Nescoll
Like Securities and Exchange Commission of Pakistan (SECP) which registers companies and regulates their affairs in Pakistan, in British Virgin Island (BVI) the organisation which registers and regulates offshore companies is the BVI Financial Services Commission (BVIFSC). Only a document from BVIFSC can be a conclusive evidence of beneficial ownership of any person. The JIT has written to BVI government for Mutual Legal Assistance (MLA) to obtain information of beneficial ownership of these offshore companies but hasn’t received any confirmation.
What JIT did in its report is interesting. Following points explain the sequence of events took place in past, and now what the JIT did.
(i) In 2012 Financial Investigation Agency (FIA) of BVI launched a general investigation to trace any instances of money laundering and sought details of certain companies mostly owned by Political Exposed Persons (PoPs) from service providers. Among others, the FIA of BVI also wrote to a service provider Mossack Fonseca on June 12, 2012 and sought details of offshore companies reportedly linked with Sharif family; Nielsen & Nescoll. This private firm Mossack Fonseca in its response in June 2012 provided details of both the companies regarding incorporation date etc and also wrote that Maryam Nawaz is the beneficial owner and that Mossack is not in receipt of any any information about any trust associated with these companies. Later leaked documents of Mossack Fonseca became Panama Papers released by International Consortium of Investigative Journalists (ICIJ).
(ii) When Panama Papers case was taken to the Supreme Court in Pakistan, it was held by the Sharif family that Maryam Nawaz is the trusty of the offshore companies Nielsen and Nescoll and Hussain Nawaz is the beneficial owner. It was further held that some official of a private firm Mossack Fonseca might have confused the things and wrongly wrote Maryam Nawaz as the beneficial owner instead of Hussain Nawaz. It was stated by the counsels of the Sharif family before the apex court that the same is the mistake of an official of a private firm and has no worth.
The FIA of BVI never declared Maryam as the beneficial owner and this correspondence between the FIA of BVI and Mossack Fonseca was simply a step of their investigation and not some finding. Even otherwise the FIA of BVI is an investigation agency and cannot confirm the beneficial ownership or other details of any offshore company and the BVIFSC is the relevant organisation on this count. The FIA of BVI can share any such information only if it has a direct confirmation from the concerned BVI organisation, the BVIFSC. Keeping aside what position Sharif family had taken before the Supreme Court, the correspondence of a private firm can’t be made basis of an evidence here and a conclusive evidence can only be a document from BVI government confirming in categorical terms that who is the beneficial owner of the these offshore companies.
(iii) Now what the JIT did is hilarious. The JIT through MLA request framed a tricky question by sending two letters to the FIA of BVI, one sent by the FIA of BVI to Mossack Fonseca on June 12, 2012 and the Mossack response to the FIA of BVI on June 22, 2012, and asked it for authentication of these two letters.
It is interesting to note that JIT hadn’t asked the FIA of BVI to confirm the beneficial ownership of Nielsen & Newscoll, the real question and simply sought authentication of two letters which were part of Panama Papers and were already submitted to the Supreme Court. These letters were confirming no fact and were containing ‘information’ provided by a registered private law firm. The same information of a private firm was refuted in the apex court and only the next step could have been verification from BVI government from the BVIFSC. It is important to highlight that the JIT was so much careful in asking questions that it didn’t even asked the FIA of BVI to confirm the beneficial ownership of the offshore companies.
The letters were written by the FIA of BVI and were responded by the Mossack Fonseca was a fact and thus the FIA of BVI on being asked by the JIT just to authenticate sending and receiving these two letters, it authenticated both.
Now JIT on basis of authentication of these two letters gave its finding in the ‘Conclusion’ that on basis of authentication of these letters by the FIA of BVI, it has been proved beyond any doubt that beneficial ownership of these two companies by Maryam Nawaz has been proved.
This was the standard of understanding of JIT members of offshore companies and reaching on conclusion that to ‘beyond any doubt’.
Not only this, Hussain Nawaz provided the JIT with a letter from a company JPCA Limited which took over secretarial administration of the offshore companies Nielsen and Nescoll in 2014 which was earlier managed by a company Minerva. However, JIT simply ignored this letter without any verification on this count. The JPCA letter reads, “These discussions and meetings took place with Mr Hussain Sharif in his capacity as beneficial owner of Nescoll and Nielsen Enterprises under the terms of a Declaration of Trust signed by Mrs Mariam Safdar of Lahore, Pakistan on 2 February 2006 as Trustee holding the entire share capital of those companies on trust for Mr Sharif as sole Beneficiary thereof. We further confirm that JPCA Limited has never met with Mrs Safdar, nor have we taken any direct instruction from her in matters relating to either Nescoll Limited or Nielsen Enterprises.”
It is terrible that even the letters whose existence was confirmed by the FIA of BVI say that Mossack was not in the receipt of any trusts connected to Nescoll and Nielson but the JIT report changed it to "there are no trusts connected to the companies". That was also a clear distortion of facts.
Page 45 of Volume-1 of JIT report reads:
Authentication of Letters of Mr Errol George (Director, Financial Investigation Agency, BVI) and response thereto of Mossack Fonseca & Co. (BVI) (released by ICIJ in Panama Papers):
(1) In response to JIT's MLA, Mr Errol George (Director, Financial Investigation Agency, BVI) has certified/ verified his correspondence with Ms J Nizbeth Maduro [Money Laundering Reporting Officer, Mossack Fonseca & Co, (BVI) during June 2012 as true copies (copies of the said letter/ correspondence is attached as Annexure D.
(2) In his letter addressed to the JIT, Mr Errol George has confirmed the following:
(a) That a letter dated 12 June, 2012 (bearing reference "SAR#1478") was issued by the Financial Investigation Agency of the British Virgin Islands ("the Agency") signed by Mr Errol George, Director, raising various queries in relation to both Nescoll Limited and Nielson Limited to Ms J Nizbeth Maduro, Money Laundering reporting Officer, Mossack Fonseca & Co (BVI) Ltd.
(b) That the Agency received a reply dated 22 June, 2012 from Mossack Fonseca & Co.(BVI) Ltd, responding to queries raised by the Agency in relation to Nielson Enterprises Limited; and
(c) That the Agency received a reply dated 22 June, 2012 from Mossack Fonseca & Co. (BVI) Ltd, responding to queries raised by the Agency in relation to Nescoll Limited.
(3) The letters certified/ verified by Mr Errol George in response to MLA request indicate that Ms J Nizbeth Maduro [Money Laundering Reporting Officer, Mossack Fonseca & Co, in her two letters dated 22 June 2012, has provided following information to FIA, BVI:-
(a) Re: Nielson Enterprises Limited — BC#114856 (copy attached): Excerpts of the letter are as under:
i. The Beneficial Owner of the company is Marvam Safdar whose address is Saroor Palace, Bazoue al eman St, Ruwais, Jeddah, Kingdom of Saudi Arabia, Passport copy enclosed for ease of reference.
ii. Please be informed that we are not in receipt of the name(s) contact details and physical addresses of Settler, Trustee and Beneficiary of any Trust(s) connected to or concerned with the aforementioned company.
(b) Re: Nescoll Limited — BC#77606 (copy attached): Excerpts of the letter are as under.
(2 points written same as above in case of Nielsen.)
(4) Conclusions: The authenticated documents render incorrect, into, the defence of Ms Maryam Safdar (Respondent No 6) and Mr Hussain Nawaz Sharif (Respondent No 7), taken before the Honourable Supreme Court of Pakistan and the JIT with respect to the beneficial ownership of the apartments and the Trust Deed submitted, as under:-
(a) The authentication of above documents by Mr Errol George and their receipt through formal official channels of Attorney General Office of BVI, prove beyond doubt that Ms. Maryam Safdar was the real and Beneficial Owner of Nielson and Nescoll offshore companies in 2012 and thus owned Avenfield properties.
(b) It authenticates that there was no Trust/ Trustees associated with these companies.”
These findings and understanding of the JIT of offshore companies and evidence to prove ‘beyond any doubt’ is in fact a charge-sheet against the JIT. It is important to note that this point was included in 13 questions of the SC judgement and JIT hasn’t given any finding against the Prime Minister Nawaz Sharif on this count.
It is critical and important that this is not only a misrepresentation by the JIT but also this cannot be read in the absence of the specific documents and legal representation that confirm the existence of the trust deed. Also, the FIA of the BVI is not the representative authority for confirmation of the existence of the trust deed. All it does is, it actually authenticates the two letters that they existed.
2: Offshore company of Prime Minister Nawaz Sharif
It is ‘confirmed’ by the JIT to the Supreme Court in its final report that Prime Minister Nawaz Sharif also has an undeclared offshore company “FZE Capital” in Dubai of which he is a ‘chairman’ and was also receiving salary from it till April 2014. The JIT findings are based on its correspondence under MLA with UAE authorities and responses from Jabel Ali Free Zone Authority (JAFZA), UAE. Finding out this aspect was not part of 13 questions of the Supreme Court judgement but this was a huge allegation against Prime Minister Nawaz Sharif.
Whether this is even an allegation or an evidence of a wrongdoing? Following points elaborate the situation:
(i) Free Zone Establishment (FZE) companies are not at all offshore companies like offshore companies set up in the BVI, Jersey or other offshore jurisdictions. Such a company can be incorporated in all UAE Free Zone. Hundreds of Pakistanis own such FZE companies in the UAE which are not at all offshore companies. Word “offshore” was clearly used to sensationalise the situation and it also reflects prejudice.
(ii) There is no concept of any linkage of Chairman in any corporate law and neither any such title exists in the laws of Free Zone establishments in the UAE, which are freely available for download and could have been reviewed by JIT members without even any MLA where the shareholder is the owner and the designated authority submitted for management is termed a manager.
(iii) The ownership of a company is proved by shareholding certificates and mere chairmanship of a company never means the person owns the company. The JIT could have easily obtained the details of shareholding of FZE Capital from the same authority to prove that Prime Minister Nawaz Sharif owns this company but clearly this was not done deliberately. It is a normal practice to become chairman of a company connected to one’s connections in order to get facilitation in visa and frequent tours to the UAE.
(iv) Hussain Nawaz, son of the prime minister has told The News that neither Prime Minister Nawaz Sharif has any single share in this company FZE Capital nor he ever received salary from this company. He said that there is no evidence that the prime minister has any share in the said company or any salary was transferred to his account. “If any salary is ever transferred to the account of the prime minister from this company, the Sharif family must be penalised of it,” Hussain Nawaz told The News.
Hussain Nawaz said that the company is owned by the Sharif family but Prime Minister Nawaz Sharif never held any share nor ever received any salary and he was appointed chairman of the company simply for facilitation of visa and visits to UAE in 2006 and the company was dissolved in 2014. The JAFZA letter mentioned the salary etc from the some appointment letter containing routine draft. Sharif family insists that no salary was ever taken by the Prime Minister Nawaz Sharif from the company and JIT proofs in this behalf are simply trash or are result of some misunderstanding. The Sharif family sources state that there is no need to declare in assets the fact that one is chairman of company if he is not the shareholder and not taking any financial benefit from the company.
(v) Sharif family’ version may be wrong but it is a fact that the JIT report failed to present any prove of ownership of the company by Nawaz Sharif or issuance of salary to him. The JIT still has the chance to provide the shareholding of the company and proofs of salary transfer to the prime minister to prove its allegation or else all this will be considered as trash. It will be considered as an attempt to sensationalise facts and to deliberately mislead the honourable court. Further it is also upon the prime minister to now confirm that he in fact holds no undeclared bank accounts in the UAE for such salary transfer and neither has he such transfer of salary been remitted to his accounts in Pakistan.
3: Dubai Agreements and Notarization is fake
The third ‘critical evidence’ presented by the JIT before the apex court is that it has got confirmation of fictitious sale/ purchase agreements submitted to honourable court by the respondents, by the Ministry of Justice, UAE.
It is important to mention that the JIT questions were very cleverly framed and apparently it seems that it provided wrong details or wrong facts to the concerned foreign authorities to obtain answers in negative.
According to the Ministry of Justice response to the JIT, the Sharif family agreement with Ahli Steel of 1980 could not be found in its record. This is no evidence and cannot prove the agreement is fake. It is simple that the JIT could have contacted the Ahli Steel Mills which is operational even now and could record their witness statement. But it was never done and the JIT only examined the selected witnesses. Further it needed to also confirm whether there is by law any requirement to maintain such record and the period for which such records are maintained by the Ministry of Justice, UAE.
Credible sources close to the owners of Ahli Steel Mills confirmed to The News that Ahli Steel Mills was never contacted for taking any evidence on this count.
Not only this, the next JIT question is about transportation of “scrap machinery” from Dubai to Jeddah. The term “Scrap Machinery” was apparently used to confuse Dubai authorities instead of asking about any movement of machinery. There is no HS code covering ‘scarp machinery’. The term used on the documents available with The News is an Arabic term meaning “steel mills machinery”. Clearly the question asked to obtain a misleading answer and same seems to have been done to deliberately mislead the apex court. The News has 22 images of original Dubai Custom documents of per truck of the machinery in the dates September 3, 2001 to September 14, 2001.
These details and original documents show that things were managed at a very big scale.
Though other things in the Ministry of Justice letter to the JIT prove nothing, one thing is very strong against Sharif family and that is the answer to a question where even the 2016 notarisation of agreements between Sharif family and Ahli Steel Mills is not found in the record.
When contacted, Hussain Nawaz said that the notarisation and attestation of documents was done from three different departments i- Ministry of Justice, ii- Ministry of Foreign Affairs and iii- Pak High Commission in the UAE.
Hussain said that it is not possible that record of a recent notarisation from three different places was not found. It is claimed that a clarification about actual facts is expected from Dubai on this count in few days. As a matter of fact the agreement copies are present with both the parties but same was not thoroughly probed and deliberately not stated that the other party also has a copy of the agreement.
According to the viewpoint of Sharif family, the Ministry of Justice states that the Central Bank of the UAE does not have in its record any transaction of 12 million Dirhams. First of all and as per law, both in Pakistan and the UAE, transaction records are not available with the Central Banks but with the banks that undertake such transactions. Therefore, confirmation of no record existing with Central Bank would be correct but actually misleading. Also the UAE banking law states that banks are required to maintain records of transactions for a period of five years and even for any business or companies closed down a record of the bank accounts and its documents for a period of five years from the time such company closes. Then how would the Central Bank be able to confirm existence of any record for such a transaction which is more than 30 years old. Therefore, the statement of Ministry of Justice that the Central Bank has no record of such transaction is factually true but used by the JIT report in its conclusion to distort and mislead to conclude that no such transaction occurred.
4: Trust Deed between Hussain and Maryam is fake
The JIT has declared on basis of its work, documents submitted by petitioners and reports of experts, including forensic experts, that Maryam and Hussain Nawaz have submitted falsified/ tampered Declarations of Trusts in the Supreme Court of Pakistan and before the JIT.
The basic finding of JIT on basis of forensic expert report is that the trust deed was signed in 2006 and it is typed in a font called Calibri which was commercially available in January 2007.
Daily Dawn published a detailed report on the issue on July 12 detailing all events regarding Calibri font starting from its beginning of its designing in 2004 and availability to Microsoft in 2004 and its commercial availability in January 2007. The report on basis of experts’ opinion concludes that it is highly unlikely that font could have been used by a notarising firm in 2006.
However, it is a fact that Calibri font was available for download after 2004 but it became default part of Microsoft operating systems only in 2007. For a news story it is a good point to file a report but obviously in a court of law only conclusive evidence can result in a judgement.
Had this been proved and established that Calibri font was invented only in 2007 and never existed before it could have proved the point that documents were faked. If it is an admitted fact that the said font was present for download after 2004, how it can be declared (and that too beyond any doubt) that the 2006 Trust Deed document is fake?
Clearly, the JIT members jumped to a conclusion on basis of a flawed expert report as is the case on other points.
It is important to mention that a British company Freeman Box witnessed this deed agreement in 2006 according to the Trust Deed documents submitted to the Supreme Court. It is very interesting that a British company ‘Quist Solicitors’, allegedly owned by a PTI activist, hired by the JIT, wrote to the Freeman Box to confirm whether Freeman Box witnessed Trust Deed between Hussain Nawaz and Maryam Nawaz in 2006. According to Hussain Nawaz, the Freeman Box responded to the Quist that it is true that the company witnessed this trust deed agreement in 2006. However, the JIT never ever mentioned this fact in its final report’s findings. If a UK law firm is proved to have done such a forgery, it cannot exist anymore in the UK. The JIT conduct on this count was seriously biased and meant for achieving some target.
