Legal Deficiencies by Abdul Rehman Yasin , Published in "The Nation" on 24
OCT 2010
The Supreme Court of Pakistan very
recently took notice of the contraband items, which included items like liquor,
in the array of foodstuff predestined for International Security Assistance
Force (ISAF) and the units of North Atlantic Treaty Organisation (NATO) forces
operative in Afghanistan that have been smuggled into Pakistan owing to sheer
negligence of the law enforcement agencies of Pakistan.
The issue of the missing ISAF
containers came to light in July 2010, when Director General Inspection and Investigation,
Peshawar, had seized a container with a declaration of assorted beverages.A
joint inspection by Intelligence and customs personnel revealed that the
container carried liquor and other contraband items, which included military
uniforms, amongst other legal and illegal items, worth Rs 80 million and
registered in the name of an ISAF contractor based in Afghanistan.
On investigation, it was found that
the container did not belong to ISAF, which was later confirmed by the
contractor. As many as 11,000 containers have been reported to have entered
Pakistan and a large number of the goods have been consumed within the country,
incurring a loss of almost Rs 220 billion in revenue.
The Chief Justice of Pakistan
directed member Customs and the Federal Board of Revenue (FBR) to file a
comprehensive statement about the permission to supply contraband items under
the garb of food supplies to the ISAF and to furnish complete records, as the
customs authorities were clueless to their whereabouts.
The ISAF has been deployed in
Afghanistan since 2001 under the authority of the United Nations Security
Council (UN-SC), which authorised the establishment of the force to assist the
Afghan government in the maintenance of security in Kabul and its surrounding
areas - in particular to enable the Afghan authorities, as well as UN
personnel, to operate in a secure environment.
The treaty that permits transit of
goods through Pakistan to Afghanistan is the Afghan Transit Trade Agreement
(ATTA) 1965, which was concluded so as to provide Afghanistan a chance to
benefit from the international trade through the high seas, as it is a
land-locked state. The ATTA provides for inspection of the goods before they
depart from Karachi, under the Customs Seal and Supervision, on to the
exclusive in-transit railway to Peshawar. However, according to the customs
officials, only 10 to 15 percent of the containers are ever checked, and this
process of checking has also started out recently since ISAF and NATO
containers have been coming through Karachi to the Afghan border.
According to Minister of State for
Finance and Revenue, the transit of goods for ISAF and NATO to Afghanistan is
not covered by the ATTA. According to his statements, a special agreement had
been made by the former government for the movement of freight meant for NATO
and ISAF troops through Pakistan, which was worked out in consultation with the
concerned state departments, and it had since been working smoothly till the
recent event concerning the ISAF containers surfaced.
Shortly after the US invasion of
Afghanistan, the Musharraf regime offered a special arrangement, whereby the
ISAF and NATO were given a special treatment for importing their cargoes
through Pakistan. In order to legalise this arrangement, the government then
issued the Customs General Order (CGO) 12/2002 for that purpose.
Upon scrutiny of CGO 12/2002, it is
evident that under Chapter 8, special privileges are granted to ISAF and UN
bodies operating in Afghanistan. Section 25 of CGO 12/2004 lays down the
procedure for the operation of the Forward Mounting Base (FMB) of ISAF for
Afghanistan and similar relief operations by the United Nations in Karachi. It
also describes the procedure by which ISAF officers or authorised agents would
cooperate with the Pakistan customs during the process of clearance of goods
meant for ISAF and other UN bodies.
Furthermore, Section 25(11)(b) of
the CGO 12/2004, explicitly allows duty – and tax-free import of foodstuff,
including liquor and tobacco. Section 31 provides the procedure of
transshipment of goods meant for Afghanistan. The procedure laid down in
Section 31 fails to provide provisions for physical inspection of cargo which
transits through Pakistan. The only way customs authorities could physically
inspect cargo is in case the transshipment goods or container are damaged or
the shipping/airline seal or customs bullet seal affixed on such container is
found broken or tampered with.
In such a situation, the goods or
container will not be allowed to enter Afghanistan unless the cargo contained
therein is examined by the customs staff in the presence of Consulates
representative at port of exit and permission or approval of the Assistant
Collector (Torkham or Chamman), as the case may be, is obtained for the entry
of such goods or container into Afghanistan.
It is explicitly clear that CGO
12/2002 fails to provide provisions for examination of the containers and
requires a re-examination by the state authorities. The prime reason for this
examination is that the situation is advantageous to smugglers, who illegally
use the ISAF emblem as the cargo is not even examined at Torkham or Chaman,
while awaiting transfer on Afghan trucks, but instead the containers are
directly passed into Afghanistan.
However, it seems pertinent to
include that according to the World Bank’s report Logistics Cost Study 2006,
each day delay in the transshipment cycle costs Pakistan over $5 million.
Physically, examining goods at both ends is not a very viable option, and
secondly this option is also not legally possible in case of the Afghan cargo,
as Pakistan does not have the legal right to inspect another country’s import.
Lastly, examining goods at both ends
would not solve anything anyway when questions arise as to the integrity of the
customs officials, who may connive with the unscrupulous and give false
inventory at both ends. Afterall, the existing scams were also made possible
only with the active involvement of these customs officials.
The writer is associated with the
Research Society of International Law. Email: info@rsilpak.org
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