Myths busted

The myth that no proceedings can be taken against a sitting Prime Minister for alleged financial crimes and that he is above law has been busted in the Panama case, still sub judice in the highest court of the land. The outcome may be against or in favour of Premier, but many view it as a good omen for democracy-beginning of accountability of the rich and mighty in Pakistan. Shockingly, the Premier and his hawkish supporters have dubbed it as "international conspiracy" impliedly alleging the involvement of even the honourable judges of the Supreme Court. This is a highly lamentable act. Political propaganda may be justified, but not to the extent of maligning the apex court. This amounts to contempt of court. The case against Nawaz Sharif and family is a personal matter but the ministers vehemently defending them use government machinery-a clear abuse of taxpayers' money. For this gross violation of law Article 63(2) of the Constitution provides for references against all violators.
In the wake of submission of report by Joint Investigation Report (JIT) and proceedings undertaken by the Implementation Bench in Panama case, extensive debate is going on in media and elsewhere about the laws related to disqualification of elected members of parliaments. Since the case is sub judice, proprietary demands that no comments should be made on the merit of the case and its possible outcome. There is, however, no bar in debating the scope of Articles 62 and 63 of the Constitution. According to the JIT report and rebuttals submitted/made by two respondents (Nawaz Sharif and Ishaq Dar), the following facts could be described as non-controversial:
1. Nawaz Sharif was issued an Iqama (residence work permit) by the UAE government as Chairman of the Board of Capital FZE- a company incorporated by Hassan Nawaz- showing entitlement of salary of AED 10,000. The counsel for Nawaz Sharif while conceding this fact in the Supreme Court on July 18, 2017 denied that any salary was received by his client. In other words, he admitted that Nawaz Sharif lied to the UAE government to obtain Iqama.
2. Ishaq Dar in his written reply to Supreme Court against the allegations of JIT has contended that "he was a non-resident for tax purposes in Pakistan for tax years 2003 to 2008. During this period, he claimed to have earned remuneration "for professional advisory services in the United Arab Emirates (UAE) as Finance Advisor to H.H. Shaikh Nahyan bin Mubarak Al Nahyan". He added that during the period 2003-2005, a sum of GBP 8.2 million was earned as remuneration for professional advisory services and a sum of GBP 1.647 million was spent, which includes gift of GBP 1.56 million to his son.
It is clear from above that both Nawaz Sharif and Ishaq Dar, Respondents in the Panama Case, were elected members of Parliament, when they entered into contract with private parties. Did Nawaz Sharif and Ishaq Dar violate any law attracting their disqualification in the light of admitted facts? This is the moot question that needs to be answered in the light of the following provision of the Constitution: "Disqualifications for membership of Majlis-e-Shoora (Parliament)
63(1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if-
(l) he, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account or as a member of a Hindu undivided family, has any share or interest in a contract, not being a contract between a co-operative society and Government, for the supply of goods to, or for the execution of any contract or for the performance of any service undertaken by, Government:
Provided that the disqualification under this paragraph shall not apply to a person
(i) where the share or interest in the contract devolves on him by inheritance or succession or as a legatee, executor or administrator, until the expiration of six months after it has so devolved on him;
(ii) where the contract has been entered into by or on behalf of a public company as defined in the Companies Ordinance, 1984 (XLVII of 1984), of which he is a shareholder but is not a director holding an office of profit under the company; or
(iii) where he is a member of a Hindu undivided family and the contract has been entered into by any other member of that family in the course of carrying on a separate business in which he has no share or interest;
Explanation.-In this Article "goods" does not include agricultural produce or commodity grown or produced by him or such goods as he is, under any directive of Government or any law for the time being in force, under a duty or obligation to supply".
Whether provisions of section 63(1)(l) are attracted for acts committed by Nawaz and Dar need determination by Court. They had interests in contracts, employee in Capital FZE and financial adviser to Shaikh Nahyan bin Mubarak Al Nahyan of the UAE, respectively. Nawaz Sharif was Chairman of Board of Capital FZR from August 7, 2006 to April 20, 2014. The profile of Dar on official website of Senate of Pakistan says: "From February 2002 till March 2008, he acted as Financial Advisor to a Member of the Ruling Family of the United Arab Emirates. In addition, he has also served till date as Director of World Bank, Asian Development Bank and Islamic Development Bank.... Senator Dar has been a Parliamentarian in the last 20 years, currently serving fifth term as Member Parliament. He was elected Member National Assembly twice (1993-96 and 1997-99), and, subsequently, for three consecutive terms, he has been elected Senator and appointed as Parliamentary Leader of PML (N) in the Senate".
According to a news report, "Dar was Finance Advisor to the UAE ruler Shaikh Nahyan bin Mubarak Al Nahyan from February 2002 to March 2008 and in this capacity he was also ex-officio president and chief executive officer of BURAQ Holdings- a company of Al Buraq group of the UAE". The undisputed position both in the case of Nawaz Sharif and Ishaq Dar is holding of offices in private companies while being elected members of Parliament in Pakistan. Did they disclose these interests while contesting elections? These facts now on record can be examined by Supreme Court or Election Commission.
Nawaz Sharif in his nomination papers filed on 31 March 2013 did not disclose his position as Chairman of the Board of Capital FZE, which he held even after being elected as Prime Minister for the third time (he took oath on June 5, 2013). This non-disclosure attracts the ratio laid down by Supreme Court in Muhammad Siddique Baloch v Jehangir Khan Tareen [PLD 2016 Supreme Court 97] that "a person who is untruthful or dishonest or profligate has no place in discharging the noble task of law making and administering the affairs of State in government office".
It is also worth mentioning that Supreme Court in Rai Hassan Nawaz v Haji Muhammad Ayub & others [2017 PLD 70 SC] held that Election Tribunal under section 76A of the Representation of People Act, 1976 (ROPA) is conferred with the power to take action, either at its own motion or on the basis of material brought to its knowledge from any source, against any elected member of Parliament for violation of law. The object of section 76A of ROPA is to promote public interest by ensuring that elected public representatives have untainted financial credentials of integrity, probity and good faith. The facts discussed above constitute definite basis for Tribunal to probe the cases of incumbent Prime Minister and Finance Minister for non-disclosures. This judgement of Supreme Court is binding under Article 189 on the Election Tribunal.
(The writers, Advocates and partners in Huzaima, Ikram & Ijaz, are Adjunct Faculty at Lahore University of Management Sciences)