Art of the past


The biggest unheeded black market



Illegal trafficking of art and artifacts from the South Asian Region is one of the most disregarded yet the most lucrative black market. While the involvement of renowned art galleries and museums have inevitably made headlines in certain cases, however, the objects concerned are simply the tip of a vast iceberg of illegally smuggled artifacts that have, over the years, made their way into public and private collections around the globe.

So valuable is the trade in stolen artworks – which includes, but is not limited to ancient pieces – that it is now estimated to be worth almost as much as the drug trafficking industry.

And while the academic association of these objects lends the trade a vague air of greater respectability than many other illegal activities, law enforcement agencies and antiquities experts are unequivocal in labeling it every bit as damaging and criminal as the smuggling of narcotics, weapons or human beings.

Likewise, the recent case of Subash Kapoor has proven how people can smuggle artifacts in such a sophisticated manner that even renowned museums are fooled into thinking that the articles presented have been obtained legally with the appropriate paper work. Such smugglers and their practices usually go unnoticed unless all their paperwork and activities are not questioned.

Subash Kapoor, an American citizen, is currently awaiting his trial in India on charges of plundering archeological sites and conspiring with black market traders to send illicit artifacts overseas. Mr. Kapoor, owner of Art of the Past on Madison Avenue, stood atop the Indian art world. After his 35 years in business, museums and collectors were paying seven figures for his Hindu, Buddhist and South Asian Antiquities. He was arrested in Germany and extradited to India. The case, which now extends to four continents and is being pursued by United States’ Homeland Security Investigations (HSI) in collaboration with Indian officials, has been named Operation Hidden Idol. He had cached the items in an assortment of hideaways in Manhattan and Queens, which were confiscated by the HSI: Immigrations and Customs Enforcement.

The question remains how this case is pertinent to Pakistan. Primarily, the obliviousness of the law enforcement agencies and the relevant ministers of the presence of a few hundred Pakistani artifacts in the warehouses in Queens and Manhattan,-worth a several billion dollars. The proceedings have been going on in Indian courts since 2011 and Pakistan’s failure of making a single claim for its own cultural heritage artifacts is what makes it more interesting.

Pakistan’s legislative regime on the preservation of cultural heritage and prohibition of illegal trafficking of antiquities lacks behind and still a lot need to be done in order to bridge the gap between the law and the issue at hand.

After the 18th Amendment in the Constitution of Pakistan, which resulted in the devolution of powers from the Federal government to the Provincial governments, the provincial assemblies have adopted an activist approach in legislating on the subject of archeology and cultural Heritage. . Although, the provinces and the federation are still disagreeing on whose exclusive domain it is to legislate on cultural property. This question is awaiting a judicial determination. Nonetheless, the provinces are legislating on the preservation of cultural property and respective administrative machinery is also in place.

The Antiquities Act, 1975 criminalised the practice of illegally smuggling artifacts however, the penalties stated in the law itself weren’t proportional to the offense. The maximum punishment stated in this particular law was of a year in the prison and a fine of Rs.5000. However, it took roughly, 40 years and 8 successive governments to realise that the law was not consistent to the problem Pakistan was facing as a State. The recently enacted KP Antiquities Act, 2016 by the Khyber Pakhtunkwa Provincial Assembly, appears to show slight conformity of the penalties with the offence at hand. This law asserts that the maximum fine would be of that of Rs. 200,000 which is still less considering the value of one artifact which crosses the border. This law also established the Antiquities Trade Control Wing to regulate and monitor the illegal trafficking of antiquities. Unlike this quite progressive provincial law on the preservation of cultural property, the federal law i.e., The Antiquities Act, 1975 remains amended and deficient. .

The emphasis should not only be on enacting better laws but furthermore, implementing those laws and repatriating the already lost treasures and bringing them back home. Little has been done by the Pakistani government in claiming the artifacts belonging to Pakistan which ended us elsewhere on the globe.        The most recent repatriation of the Buddha sculpture that was smuggled from Swat to the United States in 1980s was this April. The rare sculpture is worth more than $1.1 Million. However, the antiquity wasn’t from the Subash Kapoor stash. What surprising is that there hasn’t been any news about this case within the country or been talked about in the National Assembly or the relevant federal and provincial ministries. It would, therefore, be correct to say that there hasn’t been any claim made for the repatriation of these artifacts which are abandoned in Queens and Manhattan.

India on the other hand has not only extradited Subash Kapoor from Germany and trying him in its domestic courts but has taken all relevant measure for repatriation of all the these antiquities from Australian National museum and HSI in New York. During Modi’s recent visit to the United States, 200 artifacts were returned to India as a goodwill gesture, many of them linked to Mr. Kapoor. Pakistan should use the existing legal tools available to claim its cultural property. Using the diplomatic muscle alone might not suffice. The existing remedies, available in the domestic law, any foreign law as well as international law need to be synchronised in order to achieve the desired outcome.

Pakistan can use both International and National Laws in order to claim the antiquities, which are being held in the United States. There are several ways of approaching this matter which could possibly include bilateral agreements, claims under 1970 UNESCO Convention on the Means on Prohibiting and Preventing the Illicit Export, Import and Transfer of Ownership of Cultural Property, The Antiquities Act 1975 and The Khyber Pakhtunkhwa Antiquities Act, 2016. The State departments should prioritise this matter and hence, should take action swiftly in order to repatriate the smuggled cultural heritage artifacts which has deprived Pakistan of an important source of tourism revenue and destroyed any chance for archeologists to document the history of the sites.