The judicial blunder

Oh, the tangled webs we weave

The judgement, which was supposed to be historic and which is now a public document, is being ridiculed both locally and internationally as a judgement issued by a type of judiciary that was either incompetent or compromised.

Whereas jumping to conclusions marred the credibility of the report compiled by the Joint Investigation Team (JIT), the mistakes committed by the relevant bench of the Supreme Court (SC) have spoiled the validity of the July 28 judgement, which disqualified Nawaz Sharif from being the Prime Minister of Pakistan, through a unanimous 5-0 verdict.

The judgement, which was supposed to be historic and which is now a public document, is being ridiculed both locally and internationally as a judgement issued by a type of judiciary that was either incompetent or compromised.

The operative portion of the judgement related to the disqualification of Nawaz Sharif is this: “It has not been denied that respondent No. 1 [Nawaz Sharif] 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FZE was entitled to salary, therefore, the statement that he did not withdraw the salary would not prevent the un-withdrawn salary from being receivable, hence an asset.” There are three main problems with this part of the judgement. First, the SC considered that the entitlement to salary automatically meant receipt of salary, whether or not the salary was withdrawn. That is, the SC was of the view that the entitlement to salary could be subsumed under “receivable” and hence constituted an “asset”. However, from the perspective of the declaration of income and taxation under the Income Tax Ordinance 2001, not the entitlement to salary (or any accrual) makes the salary “receivable” to become an “asset”. Instead, the salary is considered asset based on receipt (i.e. withdrawal by the employee) only. In the judgement, the quick shift from “entitled to salary” to “un-withdrawn salary” as “receivable” is the most serious mistake, and this is also an example of jumping to a conclusion. Second, after equating the entitlement to salary with “un-withdrawn salary,” the SC looked for the definition of “asset” not in the financial ordinances (such as the Income tax Ordinance 2001) of Pakistan but in various law dictionaries including the Black’s Law dictionary and the Business dictionary. In the judgement, in para 13, the SC explained the reason for consulting the dictionaries, but the SC did not convey the reason for not consulting the Income Tax Ordinance 2001 wherein the definition of “asset” was already given. Overlooking the Ordinance and relying on dictionaries was also a mistake. To ascertain correctness of asset declaration, the relevant document was the Income Tax Ordinance 2001 and not dictionaries. Third, when consulted, the Black’s Law and Business dictionaries were read perfunctorily (and not attentively) and that they were read exclusively in the context of accounting. This mistake rendered the SC incapable of differentiating between the concept of “asset” given in the accrual basis accounting (of a company) and that in the cash basis accounting of an individual (such as an employee). The SC could not notice that, in the latter, no receivable (or “un-withdrawn salary”) was an asset unless it (i.e. the salary) was received or withdrawn by the employee. That is, the “un-withdrawn salary” is not an asset. In fact, in this case, if Nawaz Sharif had declared any “un-withdrawn” (or un-received) salary his asset in his wealth statement, his such declaration would have been false, and not vice versa.

The judgement further says: “When the un-withdrawn salary as being receivable is an asset it was required to be disclosed by respondent No. 1 [Nawaz Sharif] in his nomination papers for the Elections of 2013 in terms of Section 12(2) (f) of the ROPA.” There are two main problems with this part of the judgement. First, the mere absence of the definition of “asset” in the Representation of the People Act 1976 (ROPA 1976) meant that the Act was relying on the extant financial ordinances of the country and that the Act was leaving it open for the Election Commission (EC) of Pakistan to define “asset” accordingly. Second, the SC did not appreciate that, through his wealth statement and the nomination papers, Nawaz Sharif declared and the EC accepted the ambit of “asset” as defined in the Income Tax Ordinance 2001. Neither of them is at fault. However, if the SC thought that the definition of “asset” should have been extended (to include the definition of “asset” given in both the dictionaries), the SC could have sent a direction to the EC to do that for 2018 elections, instead of applying any such definition retrospectively to any candidate to disqualify him. Otherwise, regarding the extended definition of “asset,” the EC is equally culpable to be penalised not only for its ignorance of such an important point but also for its ill-informing the candidates of their responsibilities. The EC has to declare its disassociation from the financial ordinances of Pakistan and upgrade its definitional aspect to incorporate the extended version of an “asset” into the existing body of conditions; otherwise, no candidate including Nawaz Sharif can be held responsible for any lapse on his part. As the EC did not do so, in his nomination papers for the Elections of 2013, Nawaz Sharif did not violate the terms of Section 12 (2) (f) of the ROPA.

Generally speaking, the judgement is bound to produce an implication: that all ordinances of Pakistan have to be revised to put in line with the definitions of the Black Law’s and Business dictionaries, and the failure to do so will be ascribed to the citizens of Pakistan.

The judgement further says: Where respondent No. 1 [Nawaz Sharif] 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”. There are two main problems with this part of the judgement. First, the SC considered that a failure to disclose an “un-withdrawn salary” as an “asset” automatically meant “furnishing a false declaration.”

This point was again an example of jumping to a conclusion. Even if it were assumed that the non-disclosure of an “un-withdrawn salary” was tantamount to “furnishing a false declaration”, the SC overlooked the fact that there could be other reasons for the same including an unintended (or inadvertent) mistake. It is because the salary was not drawn (since 2007, when Nawaz Sharif was in exile) and the said company rapped its business in 2014. Similarly, the SC could also have considered that a person who was having assets of around Rs 2 billion in 2015, as per the data released by the EC in April 2016, there could have been no reason for concealment of the nominal salary of ten thousand Dirhams a month. If there was present a doubt, the SC could have asked the lawyers of Nawaz Sharif to justify this point. The SC did not do that contrary to its order of April 20 on the same case, thereby opening the leeway for the kind of judgement under discussion. Second, the SC did not disclose the definition of “honest” which it espouses. Interestingly, like ROPA 1979, the dictionaries on which the SC relied on are also silent on the definition of “honest” and even “honesty.” The SC did not convey to the citizens of Pakistan wherefrom it borrowed the definition of “honest” or “not honest” to establish the relationship between “furnishing a false declaration” and the actor who is “not honest.” If not found anywhere, it is important now that the SC construct definitions of “honest” and “not honest” for future references.

Generally speaking, the judgement is bound to produce an implication, which may be the mother of all implications. That is, all ordinances of Pakistan, in all manners, have to be revised to put in line with the definitions of the Black Law’s and Business dictionaries (if no new dictionary is added by any future bench of the SC), and the failure to do so will not be ascribed to the department concerned but to the citizens of Pakistan.