Daily Times

In the aftermath of the Panama judgement, following the pomp and fanfare that ensued, the much-awaited review petition against the Panama Judgment of the Supreme Court was received with much anticipation.  Apart from the grounds mentioned in the review petition, a detailed dissection of the Judgment has been called by some prominent lawyers of the country. This has been called in particular regarding the disqualification of the ex-prime Minister on a “narrow” ground of non-declaration of unwithdrawn salary constituting an enforceable claim, and thus an asset.

However, the second part of the judgment, which refers to the issues of corruption and possession of  assets beyond means to the accountability courts, has largely remained free from any polemic, except for the claim from Nawaz Sharif that no case of corruption stands proved against him and his family – he has a point since no binding judgment in this regard has been rendered as yet, despite the damning investigation of the JIT and the censorious observations of the Honorable judges of the Supreme Court.

As far as the debate pertaining to the definition of ‘asset’ and ‘receivables’ by the Supreme Court is concerned, it can be safely stated, that the counsel of Nawaz Sharif may have relied on cash-based accounting for asserting that unwithdrawn salary does not constitute an asset. The counsel admitted that Nawaz Sharif was entitled to a salary notwithstanding; although the Supreme Court apparently relied on accrual-based accounting for declaring otherwise. Nevertheless, the August Court actually deemed it appropriate not to have recourse to accounting principles in this regard, and instead procured the literal meaning of the terms ‘asset’ and ‘receivable’ from a dictionary, Black’s Law Dictionary, since these terms are neither defined in the Constitution, nor in the Representation of People Act, 1976 (ROPA). This would bring an actionable claim in a court of law, such as accounts receivable like unwithdrawn salary, within the ambit of an ‘asset’. Where Nawaz Sharif did not disclose this asset in his nomination papers, it would amount to furnishing a false declaration on solemn affirmation in violation of the section 12(2)(f) of ROPA. Therefore, the Supreme Court declared that 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.

There is an alternative argument, especially taken forcefully in the said review petition, that since section 12 of the Income Tax ordinance, 2001 defines “Salary” as an income received, the recourse to the dictionary meaning in this regard ought not to have been taken by the Supreme Court. This contention completely condones the fact that firstly this section defines ‘salary’ and not an ‘asset’, and secondly, the ‘Salary’ here has been defined for the purposes of the collection of tax, which only accrues on any income or asset already received. Therefore, the definition of ‘salary’ in the ordinance is wholly irrelevant and insignificant in the preset context; and the Honorable judges were left with Hobson’s choice to consult the most authentic and reliable legal dictionary in this regard. One must take cognizance of the legal principle of the interpretation of statutes that the definition of any term has to be taken from the statute under scrutiny, failing which the literal meaning can be a recourse.

The afore-mentioned notwithstanding, there is an apparent contradiction in the earlier majority judgment (para 17 of Justice Ejaz Afzal, para 14-18 of Justice Azmat Saeed and para 53-56 of Justice Ijaz-ul-Ashan) and the latest one authored by Justice Ejaz Afzal. The earlier judgment, in essence, goes on to state that it is the section 12(2)(f) of the ROPA that requires disclosure of assets, failing which the act envisages the remedies/penalties in the form of rejection of nomination papers by the Returning officer, a petition in the election tribunal, and/or criminal proceedings before the sessions court — where none of the provisions of the Constitution or ROPA dealing with disqualifications requires a member of Parliament to account for his assets, how could the Supreme Court under Article 184(3) of the Constitution declare that he is not honest and Ameen as per Article 62 of the Constitution if he does not account for such assets.

On the other hand, after declaring that non-disclosure of the asset of unwithdrawn salary would amount to furnishing a false declaration on solemn affirmation in violation of section 12(2)(f) of ROPA, the para 13 of the latest judgment goes on to contradict the observations in the earlier Panama judgment by reading the disqualification on the basis of non-declaration of assets under section 12(2)(f) of ROPA into Section 99(1)(f) of ROPA and Article 62(1)(f) of the Constitution, in order to declare that Nawaz Sharif is not honest under the latter set of provisions. In this respect, the remedies of the rejection of the nomination papers and the petition before the election tribunal having lapsed, the only option, as per the previous majority judgment in the Panama case, was to get Nawaz Sharif convicted under ROPA by the Sessions Court, and then disqualified under section 99 of the Act, read with the Article 62 of the Constitution.

The second part of the judgment, which referred to the issues of corruption and possession of assets beyond means to the accountability courts, has remained free from any polemic

Another issue that has was highlighted by one of the media groups, is the possibility of the forgery of the certificate by the Dubai free zone declaring that Nawaz Sharif was indeed holding an Iqama in the Capital FZE from the year 2006 till 2014, and other employment details. Suffice is to state that this document becomes irrelevant, in view of the admission of the counsel of Nawaz Sharif that he indeed was the Chairman of the Board of Directors of this company, in which capacity, he was entitled to a salary – though never received. Lately, some documents have also surfaced, by virtue of which it has been established Nawaz Sharif was indeed receiving a salary for some months.

Most importantly, since the matter was referred to the JIT by three judges, how five judges state the final judgment is difficult to understand. The proposition is very simple, the majority of three judges in the earlier judgment had kept their decision pending until the investigation by JIT – that is why only they heard the post-JIT proceedings and then finalized their decision; whilst the two judges had disqualified Nawaz Sharif without finding any need to delve into facts requiring investigation. The final judgment would then be given by the full-bench of five members, as it would have been given in case the three judges had not referred the matter to JIT.

All in all, the latest judgment of the Supreme Court calls for a thorough review  by the same bench, which would, give the judges with minority views in the earlier judgment a chance to provide valuable input. The constitution of a full court in this regard by the Honorable Chief Justice of Pakistan would serve as an icing on the cake. The bench should also address the reservations related to a lack of due process of law, fair trial and an appeal to the Sharif’s in the larger interest of the country in general, and the rule of law and supremacy of the constitution in particular.

Nauman Qaiser is Advocate High Court

Published in Daily Times, August 26^th 2017.