Zero Dark Thirty: Disgusting misrepresentations and false stereotypes – The Express Tribune Blog
Saturday, February 09, 2013
Get ready Americans: Your own administration is going to drone you!
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Justice Department memo reveals legal case for drone strikes on Americans.
A secretive memo from the Justice Department, provided to NBC News, provides new information about the legal reasoning behind one of the Obama administration's controversial policies. Now, John Brennan, Obama's nominee for CIA director, is expected to face tough questions about drone strikes on Thursday when he appears before the Senate Intelligence Committee. NBC's Michael Isikoff reports.
A confidential Justice Department memo concludes that the U.S. government can order the killing of American citizens if they are believed to be “senior operational leaders” of al-Qaida or “an associated force” -- even if there is no intelligence indicating they are engaged in an active plot to attack the U.S.
The 16-page memo, a copy of which was obtained by NBC News, provides new details about the legal reasoning behind one of the Obama administration’s most secretive and controversial polices: its dramatically increased use of drone strikes against al-Qaida suspects abroad, including those aimed at American citizens, such as the September 2011 strike in Yemen that killed alleged al-Qaida operatives Anwar al-Awlaki and Samir Khan. Both were U.S. citizens who had never been indicted by the U.S. government nor charged with any crimes.
The secrecy surrounding such strikes is fast emerging as a central issue in this week’s hearing of White House counterterrorism adviser John Brennan, a key architect of the drone campaign, to be CIA director. Brennan was the first administration official to publicly acknowledge drone strikes in a speech last year, calling them “consistent with the inherent right of self-defense.” In a separate talk at the Northwestern University Law School in March, Attorney General Eric Holder specifically endorsed the constitutionality of targeted killings of Americans, saying they could be justified if government officials determine the target poses “an imminent threat of violent attack.”
But the confidential Justice Department “white paper” introduces a more expansive definition of self-defense or imminent attack than described by Brennan or Holder in their public speeches. It refers, for example, to what it calls a “broader concept of imminence” than actual intelligence about any ongoing plot against the U.S. homeland.
“The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future,” the memo states.
Read the entire 'white paper' on drone strikes on Americans
Instead, it says, an “informed, high-level” official of the U.S. government may determine that the targeted American has been “recently” involved in “activities” posing a threat of a violent attack and “there is no evidence suggesting that he has renounced or abandoned such activities.” The memo does not define “recently” or “activities.”
Michael Isikoff, national investigative correspondent for NBC News, talks with Rachel Maddow about a newly obtained, confidential Department of Justice white paper that hints at the details of a secret White House memo that explains the legal justifications for targeted drone strikes that kill Americans without trial in the name of national security.
As in Holder’s speech, the confidential memo lays out a three-part test that would make targeted killings of American lawful: In addition to the suspect being an imminent threat, capture of the target must be “infeasible, and the strike must be conducted according to “law of war principles.” But the memo elaborates on some of these factors in ways that go beyond what the attorney general said publicly. For example, it states that U.S. officials may consider whether an attempted capture of a suspect would pose an “undue risk” to U.S. personnel involved in such an operation. If so, U.S. officials could determine that the capture operation of the targeted American would not be feasible, making it lawful for the U.S. government to order a killing instead, the memo concludes.
The undated memo is entitled “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Qa’ida or An Associated Force.” It was provided to members of the Senate Intelligence and Judiciary committees in June by administration officials on the condition that it be kept confidential and not discussed publicly.
Although not an official legal memo, the white paper was represented by administration officials as a policy document that closely mirrors the arguments of classified memos on targeted killings by the Justice Department’s Office of Legal Counsel, which provides authoritative legal advice to the president and all executive branch agencies. The administration has refused to turn over to Congress or release those memos publicly -- or even publicly confirm their existence. A source with access to the white paper, which is not classified, provided a copy to NBC News.
“This is a chilling document,” said Jameel Jaffer, deputy legal director of the ACLU, which is suing to obtain administration memos about the targeted killing of Americans. “Basically, it argues that the government has the right to carry out the extrajudicial killing of an American citizen. … It recognizes some limits on the authority it sets out, but the limits are elastic and vaguely defined, and it’s easy to see how they could be manipulated.”
In particular, Jaffer said, the memo “redefines the word imminence in a way that deprives the word of its ordinary meaning.”
Tribesmen this week examine the rubble of a building in southeastern Yemen where American teenager Abdulrahmen al-Awlaki and six suspected al-Qaida militants were killed in a U.S. drone strike on Oct. 14, 2011. Al-Awlaki, 16, was the son of Anwar al-Awlaki, who died in a similar strike two weeks earlier.
A Justice Department spokeswoman declined to comment on the white paper. The spokeswoman, Tracy Schmaler, instead pointed to public speeches by what she called a “parade” of administration officials, including Brennan, Holder, former State Department Legal Adviser Harold Koh and former Defense Department General Counsel Jeh Johnson that she said outlined the “legal framework” for such operations.
Pressure for turning over the Justice Department memos on targeted killings of Americans appears to be building on Capitol Hill amid signs that Brennan will be grilled on the subject at his confirmation hearing before the Senate Intelligence Committee on Thursday.
On Monday, a bipartisan group of 11 senators -- led by Democrat Ron Wyden of Oregon — wrote a letter to President Barack Obama asking him to release all Justice Department memos on the subject. While accepting that “there will clearly be circumstances in which the president has the authority to use lethal force” against Americans who take up arms against the country, it said, “It is vitally important ... for Congress and the American public to have a full understanding of how the executive branch interprets the limits and boundaries of this authority.”
A secretive memo from the Justice Department, provided to NBC News, provides new information about the legal reasoning behind one of the Obama administration's controversial policies. Now, John Brennan, Obama's nominee for CIA director, is expected to face tough questions about drone strikes on Thursday when he appears before the Senate Intelligence Committee. NBC's Michael Isikoff reports.
A confidential Justice Department memo concludes that the U.S. government can order the killing of American citizens if they are believed to be “senior operational leaders” of al-Qaida or “an associated force” -- even if there is no intelligence indicating they are engaged in an active plot to attack the U.S.
The 16-page memo, a copy of which was obtained by NBC News, provides new details about the legal reasoning behind one of the Obama administration’s most secretive and controversial polices: its dramatically increased use of drone strikes against al-Qaida suspects abroad, including those aimed at American citizens, such as the September 2011 strike in Yemen that killed alleged al-Qaida operatives Anwar al-Awlaki and Samir Khan. Both were U.S. citizens who had never been indicted by the U.S. government nor charged with any crimes.
The secrecy surrounding such strikes is fast emerging as a central issue in this week’s hearing of White House counterterrorism adviser John Brennan, a key architect of the drone campaign, to be CIA director. Brennan was the first administration official to publicly acknowledge drone strikes in a speech last year, calling them “consistent with the inherent right of self-defense.” In a separate talk at the Northwestern University Law School in March, Attorney General Eric Holder specifically endorsed the constitutionality of targeted killings of Americans, saying they could be justified if government officials determine the target poses “an imminent threat of violent attack.”
But the confidential Justice Department “white paper” introduces a more expansive definition of self-defense or imminent attack than described by Brennan or Holder in their public speeches. It refers, for example, to what it calls a “broader concept of imminence” than actual intelligence about any ongoing plot against the U.S. homeland.
“The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future,” the memo states.
Read the entire 'white paper' on drone strikes on Americans
Instead, it says, an “informed, high-level” official of the U.S. government may determine that the targeted American has been “recently” involved in “activities” posing a threat of a violent attack and “there is no evidence suggesting that he has renounced or abandoned such activities.” The memo does not define “recently” or “activities.”
Michael Isikoff, national investigative correspondent for NBC News, talks with Rachel Maddow about a newly obtained, confidential Department of Justice white paper that hints at the details of a secret White House memo that explains the legal justifications for targeted drone strikes that kill Americans without trial in the name of national security.
As in Holder’s speech, the confidential memo lays out a three-part test that would make targeted killings of American lawful: In addition to the suspect being an imminent threat, capture of the target must be “infeasible, and the strike must be conducted according to “law of war principles.” But the memo elaborates on some of these factors in ways that go beyond what the attorney general said publicly. For example, it states that U.S. officials may consider whether an attempted capture of a suspect would pose an “undue risk” to U.S. personnel involved in such an operation. If so, U.S. officials could determine that the capture operation of the targeted American would not be feasible, making it lawful for the U.S. government to order a killing instead, the memo concludes.
The undated memo is entitled “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Qa’ida or An Associated Force.” It was provided to members of the Senate Intelligence and Judiciary committees in June by administration officials on the condition that it be kept confidential and not discussed publicly.
Although not an official legal memo, the white paper was represented by administration officials as a policy document that closely mirrors the arguments of classified memos on targeted killings by the Justice Department’s Office of Legal Counsel, which provides authoritative legal advice to the president and all executive branch agencies. The administration has refused to turn over to Congress or release those memos publicly -- or even publicly confirm their existence. A source with access to the white paper, which is not classified, provided a copy to NBC News.
“This is a chilling document,” said Jameel Jaffer, deputy legal director of the ACLU, which is suing to obtain administration memos about the targeted killing of Americans. “Basically, it argues that the government has the right to carry out the extrajudicial killing of an American citizen. … It recognizes some limits on the authority it sets out, but the limits are elastic and vaguely defined, and it’s easy to see how they could be manipulated.”
In particular, Jaffer said, the memo “redefines the word imminence in a way that deprives the word of its ordinary meaning.”
Tribesmen this week examine the rubble of a building in southeastern Yemen where American teenager Abdulrahmen al-Awlaki and six suspected al-Qaida militants were killed in a U.S. drone strike on Oct. 14, 2011. Al-Awlaki, 16, was the son of Anwar al-Awlaki, who died in a similar strike two weeks earlier.
A Justice Department spokeswoman declined to comment on the white paper. The spokeswoman, Tracy Schmaler, instead pointed to public speeches by what she called a “parade” of administration officials, including Brennan, Holder, former State Department Legal Adviser Harold Koh and former Defense Department General Counsel Jeh Johnson that she said outlined the “legal framework” for such operations.
Pressure for turning over the Justice Department memos on targeted killings of Americans appears to be building on Capitol Hill amid signs that Brennan will be grilled on the subject at his confirmation hearing before the Senate Intelligence Committee on Thursday.
On Monday, a bipartisan group of 11 senators -- led by Democrat Ron Wyden of Oregon — wrote a letter to President Barack Obama asking him to release all Justice Department memos on the subject. While accepting that “there will clearly be circumstances in which the president has the authority to use lethal force” against Americans who take up arms against the country, it said, “It is vitally important ... for Congress and the American public to have a full understanding of how the executive branch interprets the limits and boundaries of this authority.”
Can the US government kill American citizens? – The Express Tribune Blog
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Can the US government kill American citizens? – The Express Tribune Blog
If an American is willing to take up arms and march to the White House, he probably will be killed on the spot.
Difficult situation if SC order not implemented: Says CJP
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Chief Justice Iftikhar Muhammad Chaudhry said if the Election Commission of Pakistan (ECP) failed to implement the Supreme Court order on the voters’ verification in Karachi in letter and spirit, too much difficult situation would arise because much ambiguity was taking place in respect of upcoming general elections and time would lapse and ECP would be left with nothing except for repenting over the situation.
A three-member bench of the apex court headed by Chief Justice Iftikhar Muhammad Chaudhry comprising Justice Gulzar Ahmed and Justice Sheikh Azmat Saeed heard identical petitions on electoral reforms as well as petition filed by PTI Chairman Imran Khan against bogus voter lists used in last general elections.
He further remarked, “If ECP people are conducting verification of voters covertly and are not being seen by any one. The court be told how much verification process has been completed and how many military personnel and FC personnel are working with them”.
He observed, “If work is not completed in time, much hue and cry will come. Next step regarding holding of elections will start when you will complete your work.
The Supreme Court on Thursday directed the Sindh Election Commissioner (EC) to submit affidavit pertaining to door-to-door voters’ verification till Feb 13.
The court directed the Election Commission of Pakistan (ECP) to delimit the constituencies in Karachi and conduct door-to-door voters’ verification with the support of Pakistan Army and Frontier Constabulary (FC).
Appearing on notice, Hamid Khan, counsel for Imran Khan alleged that no verification process of the voters in Karachi had yet been commenced in accordance with the court directions.
At this, the chief justice directed Sindh Election Commission to submit an affidavit containing number of Army and FC personals, deputed to implement the court order in the instant matter and list of the constituencies delimited in Karachi so far.
The court observed that after seeking information from the ECP in the instant matter, the bench would ask Secretary Defence to submit a reply how many Army personnel took part in the process of voters’ verification.
The chief justice asked the ECP what progress was shown in order to register overseas Pakistanis’ right to vote.
The bench also directed Commissioner, Karachi to participate in the process by supporting the law enforcement agencies.
Justice Sheikh Azmat Saeed observed that instead of sitting in the office, the authorities concerned should implement the court orders for voters’ verification in Karachi.
He remarked it had become beyond comprehension as to why ECP had not been able to implement court’s decision.
“The matters should have been finalised when the court had ordered. The concerns and complaints from the people are on the rise in this regard,” he said.
“Will you do this job after elections,” he inquired.
Justice Gulzar Ahmad remarked that the voter’s verification assignment in Karachi was a test case for ECP. It seemed as if ECP wanted to do nothing.
Later, the court adjourned the hearing till February 13.
A three-member bench of the apex court headed by Chief Justice Iftikhar Muhammad Chaudhry comprising Justice Gulzar Ahmed and Justice Sheikh Azmat Saeed heard identical petitions on electoral reforms as well as petition filed by PTI Chairman Imran Khan against bogus voter lists used in last general elections.
He further remarked, “If ECP people are conducting verification of voters covertly and are not being seen by any one. The court be told how much verification process has been completed and how many military personnel and FC personnel are working with them”.
He observed, “If work is not completed in time, much hue and cry will come. Next step regarding holding of elections will start when you will complete your work.
The Supreme Court on Thursday directed the Sindh Election Commissioner (EC) to submit affidavit pertaining to door-to-door voters’ verification till Feb 13.
The court directed the Election Commission of Pakistan (ECP) to delimit the constituencies in Karachi and conduct door-to-door voters’ verification with the support of Pakistan Army and Frontier Constabulary (FC).
Appearing on notice, Hamid Khan, counsel for Imran Khan alleged that no verification process of the voters in Karachi had yet been commenced in accordance with the court directions.
At this, the chief justice directed Sindh Election Commission to submit an affidavit containing number of Army and FC personals, deputed to implement the court order in the instant matter and list of the constituencies delimited in Karachi so far.
The court observed that after seeking information from the ECP in the instant matter, the bench would ask Secretary Defence to submit a reply how many Army personnel took part in the process of voters’ verification.
The chief justice asked the ECP what progress was shown in order to register overseas Pakistanis’ right to vote.
The bench also directed Commissioner, Karachi to participate in the process by supporting the law enforcement agencies.
Justice Sheikh Azmat Saeed observed that instead of sitting in the office, the authorities concerned should implement the court orders for voters’ verification in Karachi.
He remarked it had become beyond comprehension as to why ECP had not been able to implement court’s decision.
“The matters should have been finalised when the court had ordered. The concerns and complaints from the people are on the rise in this regard,” he said.
“Will you do this job after elections,” he inquired.
Justice Gulzar Ahmad remarked that the voter’s verification assignment in Karachi was a test case for ECP. It seemed as if ECP wanted to do nothing.
Later, the court adjourned the hearing till February 13.
Friday, February 08, 2013
SECP A SLEEPING PARTNER TO FRUAD
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Sunday, December 04, 2011
SECP Regulatory negligence protected multi-billion rupees fraud:
Serious oversights by the country’s apex regulator, the Securities and Exchange Commission of Pakistan (SECP), have reportedly played a critical role in facilitating the multibillion-rupee National Insurance Company Limited (NICL) scandal, The News has learnt. Not only did the SECP not perform its obligatory role in blocking the appointment of an unqualified official as NICL chairman, it also failed to check multibillion-rupee fraudulent investments made by NICL under the stewardship of the same chairman.
“Not many people know that the SECP is the actual regulator and law enforcement agency that deals with the insurance sector, including the NICL which is an insurance company,” a former SECP chairman told this correspondent.
At the hearing of the NICL case on November 16, Chief Justice Iftikhar Muhammad Chaudhry had warned top officials of the Federal Investigation Agency of jail terms if they didn’t recover the Rs22.5 million in frozen assets released to the accused.
According to the procedures, however, the FIA has actually ended up standing in for the SECP, which in fact should have been the regulating and investigating authority in the NICL case.
The SECP, an autonomous statutory body, has been mandated to independently exercise state authority to regulate the corporate and financial sectors and all corporate companies across Pakistan, including the insurance industry of which NICL is a part.
The SECP has two basic powers under the SECP Act 1997: diligence and preventive powers; and enforcement powers. Under its preventive powers, the Commission has to approve the appointment of the chairman and chief executive officers of national insurance companies and ensure that the ‘fit and proper’ criterion is met. It also has to ensure that insurance companies meet the ‘reporting requirement’ and file their annual reports and accounts for examination by the SECP.
Under the enforcement powers as enshrined in Part VIII of the SECP Act 1997, the SECP has the authority to investigate and prosecute offences in the insurance industry.
In relation to the NICL, the SECP has failed to exercise both these responsibilities.
The two primary issues highlighted in the NICL scam relate to the nepotistic appointment of an unqualified person, Ayyaz Niazi, as its chairman; and fraudulent investments made at exorbitant prices by NICL under the said chairman in real estate property.
“The law provides that the directors and chairman appointed by the federal government must meet the ‘fit and proper’ criteria provided by the Insurance Ordinance and SECP,” an SECP former chairman told The News, seeking anonymity.
Section 12 of the Insurance Ordinance 2000 provides the criteria for sound and prudent management: “A person is a fit and proper person who possesses such experience and qualifications as are appropriate for the duties for which he is responsible, and conducts those duties with due diligence and skill.”
It was SECP’s legal obligation to ensure that Ayyaz Niazi, who had no experience or qualifications relating to the insurance industry, was not appointed as NICL chairman. “The chief executive could not have been appointed without SECP’s approval. If he [Niazi] had no experience why was he appointed? That’s a question SECP has to answer,” said Salman Raja, a Supreme Court lawyer and an expert in corporate-regulatory affairs.
At the time that Ayyaz Niazi was appointed Chairman NICL on February 12, 2009, Mr Salman A Shaikh was SECP chairman. He took charge on Jan 12 2009 and remained in office till Nov 29, 2010.
The second issue, which relates to fraudulent investments, also comes directly under SECP supervision. NICL’s financial accounts for 2008 show that total investment made in property was Rs647 million. In 2009, however, under Ayyaz Niazi, this investment suddenly shot up to Rs4,471 million, an over 700 percent increase in one year.
“Under the Insurance Ordinance 2000, and as per SECP’s diligence and preventive powers, the SECP is legally bound to examine the audited accounts of all insurers and see that they comply with laws, regulations and accounting standards,” an ex insurance commissioner at SECP explained, adding, “It is therefore SECP’s duty and function under the law to ensure that no fraudulent transactions are made by the insurance company.”
And yet, despite receiving details of NICL’s accounts and being aware of a whopping 700 percent rise in investments, what did SECP do?
Under section 160 of the Insurance Ordinance, the SECP was bound to take action against all persons - directors, chairman and officers or outside persons - who had defrauded the NICL of its property and money. This section required the SECP to take the matter to the specially constituted Insurance Tribunal that had the power to order the said persons to pay back the money and property to the NICL.
“Where the money has been lost, the tribunal has the power to presume that every person in charge of the NICL has become accountable and can order recovery along with attachment of their personal properties. Additionally these persons can be punished for two years imprisonment,” an insider explained.
On it’s part, SECP’s insurance commissioner says SECP called for explanation letters from NICL regarding non-submission of audited and regulatory returns as well as an information letter under Section 61 of the Insurance Ordinance 2000; and issued an Examination of Accounts letter and show cause notices on 3 different occasions. If this is true, the question still remains that a specialised legal framework in the shape of the Insurance Ordinance and a separate judicial forum in the shape of the Insurance Tribunal exist to prevent scams such as NICL and hold offenders to account. And yet, these mechanisms were never activated because all are dependant on the SECP initiating action - which it did not.
Has this abdication of its obligatory responsibilities forced the court into seeking FIA’s intervention? Conceding the fact, a very senior SECP functionary said, “Had the SECP investigated and prosecuted the culprits in the NICL scam, the time and effort wasted by the Supreme Court on needless ancillary issues like interference from the political leadership, transfer of investigation officers and non-cooperation by relevant authorities and officers would have been avoided.”
“SECP’s inaction by itself warrants an official enquiry into the matter and requires that SECP functionaries involved be punished for criminal negligence,” a corporate lawyer told The News. “The only plausible explanation for this complete failure of the SECP may be that the regulator has itself has been captured by the powerful nexus between political and market lobbies and interest groups through illegal appointments at the top, just as NICL itself.”
A senior insurance adviser opined: “It may be time for the Supreme Court to summon SECP heads and ask them why they’ve been sleeping all this time. “
However, SECP insiders defend the Commission’s laxity by saying the SECP Act necessitates that between 5-7 commissioners be employed at any time to oversee the corporate and financial sectors. “We have been operating with two, maximum three, commissioners,” a source said. “This is contrary to the SECP Act and means we are understaffed and overworked.”
Asif Arif, SECP’s insurance commissioner, told The News: “SECP does not have the authority to approve NICL’s Chairman. As per Memorandum and Articles of NICL, the CEO is appointed by the Board which in turn is appointed by the shareholders, which in this case is the government of Pakistan.”
Even if that is the case,the SECP Act and Insurance Ordinance read together make it completely clear that the SECP is indeed responsible for approving the chairman nominee appointed by NICL’s shareholders by ensuring that the ‘fit and proper’ criterion was met. This it did not do.
Arif also said that “the fit and proper criteria as mentioned in Section 11 and 12 of the Insurance Ordinance puts the onus on the insurer to ensure compliance with the criteria.”
This is tantamount to the SECP expecting the insurance sector to self-regulate and abdicating its preventive responsibilities under established rules to ensure “the professional competence and capability of all persons engaged in the provision of services in the insurance sector.” Articles 29-34 of the SECP Act clearly detail the enforcement and investigation responsibilities of the SECP.
“What is the point of having the SECP as an independent regulator if we are going to leave it to the insurer to ensure compliance with rules?” said a corporate-insurance expert. “And what is the point of the SECP at all if it is left to the courts and the FIA to deal with insurance fraud?”
Recently, the SECP has made some changes in the way it supervises the insurance industry and finalised new solvency rules for insurance companies. But with the courts and FIA already in the thick of the NICL case, is this too little, too late?
“Not many people know that the SECP is the actual regulator and law enforcement agency that deals with the insurance sector, including the NICL which is an insurance company,” a former SECP chairman told this correspondent.
At the hearing of the NICL case on November 16, Chief Justice Iftikhar Muhammad Chaudhry had warned top officials of the Federal Investigation Agency of jail terms if they didn’t recover the Rs22.5 million in frozen assets released to the accused.
According to the procedures, however, the FIA has actually ended up standing in for the SECP, which in fact should have been the regulating and investigating authority in the NICL case.
The SECP, an autonomous statutory body, has been mandated to independently exercise state authority to regulate the corporate and financial sectors and all corporate companies across Pakistan, including the insurance industry of which NICL is a part.
The SECP has two basic powers under the SECP Act 1997: diligence and preventive powers; and enforcement powers. Under its preventive powers, the Commission has to approve the appointment of the chairman and chief executive officers of national insurance companies and ensure that the ‘fit and proper’ criterion is met. It also has to ensure that insurance companies meet the ‘reporting requirement’ and file their annual reports and accounts for examination by the SECP.
Under the enforcement powers as enshrined in Part VIII of the SECP Act 1997, the SECP has the authority to investigate and prosecute offences in the insurance industry.
In relation to the NICL, the SECP has failed to exercise both these responsibilities.
The two primary issues highlighted in the NICL scam relate to the nepotistic appointment of an unqualified person, Ayyaz Niazi, as its chairman; and fraudulent investments made at exorbitant prices by NICL under the said chairman in real estate property.
“The law provides that the directors and chairman appointed by the federal government must meet the ‘fit and proper’ criteria provided by the Insurance Ordinance and SECP,” an SECP former chairman told The News, seeking anonymity.
Section 12 of the Insurance Ordinance 2000 provides the criteria for sound and prudent management: “A person is a fit and proper person who possesses such experience and qualifications as are appropriate for the duties for which he is responsible, and conducts those duties with due diligence and skill.”
It was SECP’s legal obligation to ensure that Ayyaz Niazi, who had no experience or qualifications relating to the insurance industry, was not appointed as NICL chairman. “The chief executive could not have been appointed without SECP’s approval. If he [Niazi] had no experience why was he appointed? That’s a question SECP has to answer,” said Salman Raja, a Supreme Court lawyer and an expert in corporate-regulatory affairs.
At the time that Ayyaz Niazi was appointed Chairman NICL on February 12, 2009, Mr Salman A Shaikh was SECP chairman. He took charge on Jan 12 2009 and remained in office till Nov 29, 2010.
The second issue, which relates to fraudulent investments, also comes directly under SECP supervision. NICL’s financial accounts for 2008 show that total investment made in property was Rs647 million. In 2009, however, under Ayyaz Niazi, this investment suddenly shot up to Rs4,471 million, an over 700 percent increase in one year.
“Under the Insurance Ordinance 2000, and as per SECP’s diligence and preventive powers, the SECP is legally bound to examine the audited accounts of all insurers and see that they comply with laws, regulations and accounting standards,” an ex insurance commissioner at SECP explained, adding, “It is therefore SECP’s duty and function under the law to ensure that no fraudulent transactions are made by the insurance company.”
And yet, despite receiving details of NICL’s accounts and being aware of a whopping 700 percent rise in investments, what did SECP do?
Under section 160 of the Insurance Ordinance, the SECP was bound to take action against all persons - directors, chairman and officers or outside persons - who had defrauded the NICL of its property and money. This section required the SECP to take the matter to the specially constituted Insurance Tribunal that had the power to order the said persons to pay back the money and property to the NICL.
“Where the money has been lost, the tribunal has the power to presume that every person in charge of the NICL has become accountable and can order recovery along with attachment of their personal properties. Additionally these persons can be punished for two years imprisonment,” an insider explained.
On it’s part, SECP’s insurance commissioner says SECP called for explanation letters from NICL regarding non-submission of audited and regulatory returns as well as an information letter under Section 61 of the Insurance Ordinance 2000; and issued an Examination of Accounts letter and show cause notices on 3 different occasions. If this is true, the question still remains that a specialised legal framework in the shape of the Insurance Ordinance and a separate judicial forum in the shape of the Insurance Tribunal exist to prevent scams such as NICL and hold offenders to account. And yet, these mechanisms were never activated because all are dependant on the SECP initiating action - which it did not.
Has this abdication of its obligatory responsibilities forced the court into seeking FIA’s intervention? Conceding the fact, a very senior SECP functionary said, “Had the SECP investigated and prosecuted the culprits in the NICL scam, the time and effort wasted by the Supreme Court on needless ancillary issues like interference from the political leadership, transfer of investigation officers and non-cooperation by relevant authorities and officers would have been avoided.”
“SECP’s inaction by itself warrants an official enquiry into the matter and requires that SECP functionaries involved be punished for criminal negligence,” a corporate lawyer told The News. “The only plausible explanation for this complete failure of the SECP may be that the regulator has itself has been captured by the powerful nexus between political and market lobbies and interest groups through illegal appointments at the top, just as NICL itself.”
A senior insurance adviser opined: “It may be time for the Supreme Court to summon SECP heads and ask them why they’ve been sleeping all this time. “
However, SECP insiders defend the Commission’s laxity by saying the SECP Act necessitates that between 5-7 commissioners be employed at any time to oversee the corporate and financial sectors. “We have been operating with two, maximum three, commissioners,” a source said. “This is contrary to the SECP Act and means we are understaffed and overworked.”
Asif Arif, SECP’s insurance commissioner, told The News: “SECP does not have the authority to approve NICL’s Chairman. As per Memorandum and Articles of NICL, the CEO is appointed by the Board which in turn is appointed by the shareholders, which in this case is the government of Pakistan.”
Even if that is the case,the SECP Act and Insurance Ordinance read together make it completely clear that the SECP is indeed responsible for approving the chairman nominee appointed by NICL’s shareholders by ensuring that the ‘fit and proper’ criterion was met. This it did not do.
Arif also said that “the fit and proper criteria as mentioned in Section 11 and 12 of the Insurance Ordinance puts the onus on the insurer to ensure compliance with the criteria.”
This is tantamount to the SECP expecting the insurance sector to self-regulate and abdicating its preventive responsibilities under established rules to ensure “the professional competence and capability of all persons engaged in the provision of services in the insurance sector.” Articles 29-34 of the SECP Act clearly detail the enforcement and investigation responsibilities of the SECP.
“What is the point of having the SECP as an independent regulator if we are going to leave it to the insurer to ensure compliance with rules?” said a corporate-insurance expert. “And what is the point of the SECP at all if it is left to the courts and the FIA to deal with insurance fraud?”
Recently, the SECP has made some changes in the way it supervises the insurance industry and finalised new solvency rules for insurance companies. But with the courts and FIA already in the thick of the NICL case, is this too little, too late?
Conflict of interest hampering legal action | Business | DAWN.COM
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Conflict of interest hampering legal action | Business | DAWN.COM
The manipulation was carried out with help of AKD group but JS being a broker himself smelt the rat and SECP was tipped off last year.
Daily Times - Leading News Resource of Pakistan - NICL case: SC orders investigation against Amin Faheem
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The chief justice questioned if the prime minister could be penalised for not fulfilling his responsibility then why spare a minister. The court also issued notices to the Securities and Exchange Commission of Pakistan (SECP) chairman, both incumbent and the former, who approved the appointment of Niazi.
Thursday, February 07, 2013
Wednesday, February 06, 2013
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