M Yasir Kayani
THE future of the legal history of Pakistan is prone to many legal battles which will be fought among bees-knees and not the ordinaries, but whether the due process of law will be followed in those battles to reach a just decision or mere selective justice will be done to crush the equality clauses., backed by many protectors and idealists. Let’s leave it on the flight of time and have a look at what has been done so far in the name of justice in this neck of the woods. The decision of the implementation bench of the Supreme Court cannot be interpreted by unyoking the events adjunct to it. The story is that in Pakistan’s 70 years of existence, not one prime minister has served a full five-year term. Unfortunately, they’ve been dismissed by governor-generals and army chiefs and judges. Nawaz Sharif, now the Ex-Premier of Pakistan, was not ‘disqualified’ but, in fact, dismissed by the country’s highest court – the Supreme Court of Pakistan, repeating five-year back history when Yousaf Raza Gilani was dismissed in 2012, but on different grounds.
The Supreme Court didn’t find Sharif guilty of corruption per se, but instead declared that he’d violated Articles 62 and 63 of Pakistan’s Constitution, which demand that members of parliament be “sadiq” and “ameen” — “truthful” and “righteous.” Apparently, despite having zero evidence of corruption against the elected civilian Prime Minister Nawaz Sharif, an undeclared ‘receivable’ salary of a now-dissolved company in the United Arab Emirates (UAE) has led to his ‘technical knock out’, making him the only elected premier who has been thrown out of the power corridors on three occasions in the political and constitutional history of the country. So in simple terms it can safely be said that Nawaz Sharif was alleged of looting billions but he has been disqualified for not declaring Iqama in his assets despite the fact that there is no evidence that he even drew any salary through it.
The apex court admitted in the verdict “the word asset has not been defined in the Representation of the People Act 1976 (“ROPA”), therefore, its ordinary meaning has to be considered for the purposes of this case.” Then the honorable court took help from Black’s Law Dictionary that states “an asset can be (i) something physical such as cash, machinery, inventory, land and building (ii) an enforceable claim against others such as accounts receivable (iii) rights such as copyright, patent trademark etc (iv) an assumption such as goodwill.” In the defense of Prime Minister Nawaz Sharif it was stated in categorical terms, “So far as the designation of respondent No 1 as Chairman of the Board is concerned, this was only a ceremonial office acquired in 2007 when the respondent No 1 was in exile, and had nothing to do with running the company or supervising its affairs. Similarly, the respondent No. 1 did not withdraw the salary of AED 10,000. Thus, the salary shown in the Employment Contract in effect never constituted an “asset” for the respondent No 1.”
However, 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. 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.
Striking a legal glance on the verdict; 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. It is pertinent strongly to mention here that 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’.
The ousting of Pakistan’s elected Prime Minister by the country’s top court dramatically raises the risk profile for investors and businesses in the tumultuous, but fast-growing South Asian economy. “It’s a step backwards,” said Gareth Price, a senior research fellow at London’s Chatham House. Whether the decision wears the wardrobe of undue-influence or irksome relations of civil-military establishment, as the non-testable theories unravel, the ground on which the Prime Minister was disqualified by the apex court raises many a question and an entangled thinking that halts the way of smooth running of the stream of consciousness through which one can comprehend the verdict in favour of its conclusion. The positive would appear from within the verdict when, in future, the same systematic and organized method of scrutiny will apply unselectively to any alleged Government official of whichever institution one belongs along with the same fervour. And the negative would appear vice versa.
— The writer is Advocate High Courts of Pakistan.
M Yasir Kayani