PANAMA VERDICT: A FEW QUESTIONS

By Wasim Abid

 

On Friday July 28, 2017 the Supreme Court of Pakistan disposed off the constitutional petitions regarding the Panama Papers. The Supreme Court found the Prime Minister of Pakistan, Mian Muhammad Nawaz Sharif as dishonest and disqualified him in terms of Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973 (Constitution). The Supreme Court declared that

“… having failed to disclose his un-withdrawn receivables constituting assets from Capital FZE, Jebel Ali, UAE in his nomination papers filed for the General Elections held in 2013 in terms of Section 12(2)(f) of the Representation of the People Act, 1976 (ROPA), and having furnished a false declaration under solemn affirmation respondent No. 1 Mian Muhammad Nawaz Sharif is not honest in terms of Section 99(f) of ROPA and Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973, therefore, he is disqualified to be a Member of the Majlis-e-Shoora (Parliament)…

The above finding was based on the fact that Nawaz Sharif was admittedly holding a position of Chairman at a company based in Dubai, UAE. Though he was not withdrawing a salary for the said post, yet it was not disputed that the said position was entitled to a salary. Therefore, the position being entitled to a salary, the fact that the entitled salary was not withdrawn would necessary imply that the entitled salary is a receivable which according to dictionary definition constitutes an asset. Since, a receivable is an asset the same was required to be disclosed by Nawaz Sharif in his nomination papers for contesting General Elections 2013, and because he failed to disclose this receivable, he failed to disclose his complete assets and hence is dishonest and consequently disqualified from being a Member of the National Assembly of Pakistan.

The Court’s verdict leaves too many legal questions unanswered. For example, in terms of the prevailing tax laws in Pakistan, a person is only required to declare income which the person has earned during a tax year. Receivables are not factored in while calculating income. So how do the “un-withdrawn receivables” then constitute assets when the tax laws of our country do not even recognize them as income.

There is another question that the Court did not delve into that is of intent.  In order to find a person honest or dishonest, there has to be an act which would be committed based on which a person is declared honest or dishonest. In terms of jurisprudence that has been developed in our country, an act can be declared as honest or dishonest based on the intent behind that act. Therefore, it is the intent behind an act that has to ascertained before determining the honesty of a person. The Court has held that it is an admitted fact that a post of chairman was being held by Nawaz Sharif and it is not denied that the said post was entitled to a salary. However, what has not being taken into consideration by the Court is whether by not withdrawing a salary a person was entitled to, would actually amount to a person forgoing or waiving the salary. And if so, would it still amount to a receivable and hence an asset. The Court in order to settle the law, and leaving no room for doubt should have inquired into this fact to ascertain the intent behind not declaring “un-withdrawn receivables”. The Court in its verdict, by not defining any parameters for determining legal honesty and by simply holding that “un-withdrawn receivables” are assets without ascertaining the intent behind non declaration of “un-withdrawn receivables” has left too many legal questions unanswered making this verdict a controversial judgment in public opinion.

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