Dawn article questions Pak court’s ‘law and logic’

“It has not been denied that respondent No. 1 being Chairman of the Board of Capital FZE was entitled to salary, therefore, the statement that he did not withdraw the salary would not prevent the un-withdrawn salary from being receivable, hence an asset. When the un-withdrawn salary as being receivable is an asset it was required to be disclosed by respondent No. 1 in his nomination papers for the Elections of 2013 in terms of Section 12(2)(f) of the ROPA. Where respondent No. 1 did not disclose his aforesaid assets, it would amount to furnishing a false declaration on solemn affirmation in violation of the law mentioned above, therefore, he is not honest in terms of Section 99(1)(f) of the ROPA and Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan.” — Unanimous conclusion of the Supreme Court implementation bench while disqualifying the Prime Minister.

That’s it.

Nawaz Sharif failed to declare his un-withdrawn salary of AED 10,000 dirhams from Capital FZE in his 2013 nomination papers. That was the only ground taken by the Supreme Court for disqualifying an elected prime minister.

Everything else — all your London flats, Calibri fonts, Qatari letters, Dubai factories, corruption, money laundering — has been declared as “prima facie triable” and sufficient for initiating a NAB reference and trial before the NAB court, but insufficient for disqualification under Articles 62 and 63.

Insofar as those issues are concerned, the judges only repeat what they earlier stated:

“Any allegation levelled against a holder of public office under these provisions of law requires an investigation and collection of evidence showing that he or any of his dependents or benamidars owns, possesses or has acquired assets etc disproportionate to his known means of income. Such investigation is followed by a full-fledged trial before an Accountability Court for determination of such liability. But where neither the Investigation Agency investigated the case, nor any of the witnesses has been examined and cross-examined in an Accountability Court nor any of the documents incriminating the person accused has been produced and proved in accordance with the requirements of Qanoon-e-Shahadat Order, 1984, nor any oral or documentary pieces of evidence incriminating the person accused has been sifted, no verdict disqualifying a holder of public office could be given by this Court in a proceeding under Article 184(3) of the Constitution on the basis of a record which is yet to be authenticated.”

So we are back to the undeclared dirhams (some three hundred thousand rupees, give or take). What the judges have said is this: you were owed ten thousand dirhams. The fact you did not collect them is irrelevant. They were “a receivable” and “receivables” are assets. Now since the law requires you to declare your assets in your nomination form and you didn’t include these “receivables” — you are dishonest and liable to be disqualified.

Let’s leave aside the point that if this is going to be the new standard of “sadiq” (truthful) and “ameen” (trustworthy) and the consequence of every minor omission on an assets declaration form, we are going to be short of a few hundred parliamentarians by the end of the year. That veers into a political and philosophical debate I’d rather avoid for now.

Let’s stick to the letter of the law. There are two main systems of accounting. Individuals generally adopt the cash-basis system where you only record monies you have actually received as your income and monies you have actually paid as your expenses. Companies prefer the accrual basis of accounting where you record all monies receivable by you (whether you have actually received them or not) as your income and all monies payable by you (whether you have actually paid them or not) as your expenses.

In other words, you record your income at the time you become entitled to it instead of the day you actually receive it. Both systems of accounting are perfectly acceptable under Pakistani law.

So Nawaz Sharif was perfectly entitled to claim that the Capital FZE monies did not constitute his income as he had not received it as yet. If it wasn’t his income, it couldn’t later form part of his assets either. Meaning, therefore, he was under no obligation to declare it.

Let me give another example. Like most lawyers — I have a number of dead-beat clients who, collectively, owe me a fairly hefty sum of legal fees. Some will eventually pay, others will not. Since I follow the cash-basis accounting system, I only declare fees that have actually been paid to me as my income. I do not declare fees payable to me as my income nor do I add them to my wealth statement nor do I pay taxes thereon just because I’ve already sent out the fee invoice and it has become a “receivable”.

If the Supreme Court applied the above standard to all, every single lawyer presently in Parliament would be disqualified if his unpaid legal fees were not mentioned as an asset in his nomination papers!

Even otherwise, the Supreme Court has repeatedly emphasised that not every mis-declaration on a nomination form is ground for disqualification. The mis-declaration must pertain to a “material particular” which has been defined as a fact that — if disclosed — would have exposed you to disqualification (like holding of dual nationality).

Only last year, the Court declared in Murad Bux’s case — “[w]e are of the considered view that non-disclosure of a fact which otherwise, if disclosed, could not debar the Petitioner from contesting the election, cannot be made ground to preclude the Petitioner from contesting the election”.

As the bench itself pointed out during the Panama Papers case hearings, the Constitution does not bar the prime minister from holding another office of profit. If so, his omission to mention his salary from Capital FZE could hardly be termed a ‘material particular’.

In the previous round of the Panama Papers case, Justice Asif Saeed Khosa — in his minority judgement — quoted Bassanio in The Merchant of Venice: “And I beseech you, Wrest once the law to your authority: To do a great right, do a little wrong”. At the time, Justice Azmat Saeed responded with “[w]e cannot resort to exceptionalism by making a departure from the settled law and inventing a new set of rules merely because Respondent No.1 holds the Office of the Prime Minister. The last time in our legal history, when such a course of action was followed, it had tragic consequences.”

Unfortunately, the former view seems to have prevailed in the Supreme Court for now. When this happened the last time round, the “tragic consequences” were visited not only upon that prime minister but on the nation as a whole and the long-term credibility of the Supreme Court itself. If there was ever a judgement that begs review, this is it.

The writer is a barrister.

This article first appeared in Dawn on July 29