Supreme Court: Jurisdiction & Justice
“All the other courts in this country are courts of law whereas this Court is not just a court of law but also the court of ultimate justice. It is obvious that when it comes to exercise of the said jurisdiction of this Court to do complete justice a strict application of the black letter law may not stand between this Court and the noble cause of justice if the circumstances of the case so warrant”—Justice Asif Saeedin Constitutional Petition No 29 of 2016— Imran Khan v Mian Nawaz Sharif & others.
In the wake of disqualification of three-times elected Prime Minister, Mian Muhammad Nawaz Sharif, directly by Supreme Court of Pakistan, a heated debate is going on as to whether the highest court of the country has jurisdiction to act as a trial court while exercising jurisdiction under Article 184(3) of the Constitution of Islamic Republic of Pakistan [hereinafter “the Constitution”]. The main legal argument against the decision —though many are contesting it on facts and review petitions have also been filed by respondents on multiple grounds—is that it is violative of Article 10A [right to fair trial]. Article 10A, inserted through the Eighteenth Constitutional Amendment, guarantees a fundamental right that “for the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process”.
In this paper, we are not discussing the political consequences of the judgment, but confining the discussion on purely legal issues, especially the scope of jurisdiction of the Supreme Court under the Constitution. In Imran Khan v Mian Nawaz Sharif & others [Constitutional Petition No 29 of 2016], the apex court has extensively dealt with this issue. It should also be remembered that in this case before the commencement of hearings, both petitioners and respondents, on the order of the court, gave their consent in writing that they had no objection on inquisitorial jurisdiction, exercisable by Supreme Court, under Article 184(3) of the Constitution. The objections to the jurisdiction of the court by the respondents in the event of the adverse order are thus not understandable as they participated fully in the proceedings and presented thousands of documents in their support and/or for the purpose of refuting the charges levelled against them.
The establishment, jurisdiction and powers of Supreme Court, conferred by the supreme law of the land, are briefly summarized on its website as below:
Article 175: Establishment and Jurisdiction of Courts
(1) There shall be a Supreme Court of Pakistan, a High Court for each Province and such other Courts as may be established by law.
(2) No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.
(3) The Judiciary shall be separated progressively from the Executive within fourteen years from the commencing day.
Article 176: Constitution of Supreme Court
The Supreme Court shall consist of a Chief Justice to be known as the Chief Justice of Pakistan and so many other Judges as may be determined by Act of Majlis-I-Shoora (Parliament) or, until so determined, as may be fixed by the President.
Article 177: Appointment of Supreme Court Judges
(1) The Chief Justice of Pakistan shall be appointed by the President, and each of the other Judges shall be appointed by the President after consultation with the Chief Justice.
(2) A person shall not be appointed a Judge of the Supreme Court unless he is a citizen of Pakistan; and-
(a)has for a period of, or for periods aggregating, not less than five years been a judge of a High Court (including High Court which existed in Pakistan at any time before the commencing day); or
(b)has for a period of, or for periods aggregating, not less than fifteen years been an Advocate of a High Court (including a High Court which existed in Pakistan at any time before the commencing day).
Article 178: Oath of Office
Before entering upon office, the Chief Justice of Pakistan shall make before the President, and any other Judge of the Supreme Court shall make before the Chief Justice, oath in the form set out in the Third Schedule.
Article 179: Retiring Age
A Judge of the Supreme Court shall hold office until he attains the age of sixty-five years, unless he sooner resigns or is removed from office in accordance with the Constitution.
Article 180: Acting Chief Justice
At any time when-
(a) the Office of Chief Justice of Pakistan is vacant; or
(b) the Chief Justice of Pakistan is absent or is unable to perform the functions of his office due to any other cause, the President shall appoint [the most senior of the other Judges of the Supreme Court] to act as Chief Justice of Pakistan.
Article 181: Acting Judges
(1) At any time when-
(a) the office of a Judge of the Supreme Court is vacant; or
(b) a Judge of the Supreme Court is absent or is unable to perform the functions of his office due to any other cause, the President may, in the manner provided in clause (1) of Article 177, appoint a Judge of a High Court who is qualified for appointment as a Judge of the Supreme Court to act temporarily as a Judge of the Supreme Court.[Explanation._ In this clause ‘Judge of a High Court’ includes a person who has retired as a Judge of a High Court]. (2) An appointment under this Article shall continue in force until it is revoked by the President.
Article 182: Appointment of Ad-hoc Judges:
If at any time it is not possible for want of quorum of Judges of the Supreme Court to hold or continue any sitting of the Court, or for any other reason it is necessary to increase temporarily the number of Judges of the Supreme Court, the Chief Justice of Pakistan may, in writing,-
(a) with the approval of the President, request any person who has held the office of a Judge of that Court and since whose ceasing to hold that office three years have not elapsed; or
(b) with the approval of the President and with the consent of the Chief Justice of a High Court, require a Judge of that Court qualified for appointment as a Judge of the Supreme Court,
to attend sittings of the Supreme Court as an ad hoc Judge for such period as may be necessary and while so attending an ad hoc Judge shall have the same power and jurisdiction as a Judge of the Supreme Court.
Article 183: Seat of the Supreme Court
(1) The permanent seat of the Supreme Court shall, subject to clause (3), be at Islamabad.
(2) The Supreme Court may from time to time sit in such other places as the Chief Justice of Pakistan, with the approval of the President, may appoint.
(3) Until provision is made for establishing the Supreme Court at Islamabad, the seat of the Court shall be at such place as the President may appoint.
Article 184: Original Jurisdiction of Supreme Court
(1) The Supreme Court shall, to the exclusion of every other Court, have original jurisdiction in any dispute between any two or more Governments.
Explanation. _ In this clause, “Governments” means the Federal Government and the Provincial Governments.
(2) In the exercise of the jurisdiction conferred on it by clause (1), the Supreme Court shall pronounce declaratory judgments only.
(3) Without prejudice to the provisions of Articles 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article.
Article 185: Appellate Jurisdiction of Supreme Court
(1) Subject to this Article, the Supreme Court shall have jurisdiction to hear and determine appeals from judgments, decrees, final orders or sentences of a High Court.
(2) An appeal shall lie to the Supreme Court from any judgment, decree, final order or sentence of a High Court-
(a) if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to transportation for life or imprisonment for life; or, on revision, has enhanced a sentence to a sentence as aforesaid;
(b) if the High Court has withdrawn for trial before itself any case from any Court subordinate to it and has in such trial convicted the accused person and sentenced him as aforesaid, or
(c) if the High Court has imposed any punishment on any person for contempt of the High Court; or
(d) if the amount or value of the subject-matter of the dispute in the Court of first instance was, and also in dispute in appeal is, not less than fifty thousand rupees or such other sum as may be specified in that behalf by Act of [Majlis-I-Shoora (Parliament)] and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; or
(e) if the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; or
(f) if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution.
(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court in a case to which clause (2) does not apply shall lie only if the Supreme Court grants leave to appeal.
Article 186: Advisory Jurisdiction
(1) If, at any time, the President considers that it is desirable to obtain the opinion of the Supreme Court on any question of law which he considers of public importance, he may refer the question to the Supreme Court for consideration.
(2) The Supreme Court shall consider a question so referred and report its opinion on the question to the President.
Article 186A: Power of Supreme Court to transfer cases
The Supreme Court may, if it considers it expedient to do so in the interest of justice, transfer any case, appeal or other proceedings pending before any High Court to any other High Court.
Article 187: Issue and Execution of Processes of Supreme Court
(1) Subject to clause (2) of Article 175, the Supreme Court shall have power to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it, including an order for the purpose of securing the attendance of any person or the discovery or production of any document.
(2) Any such direction, order or decree shall be enforceable throughout Pakistan and shall, where it is to be executed in a Province, or a territory or an area not forming part of a Province but within the jurisdiction of the High Court of the Province, be executed as if it had been issued by the High Court of that Province.
(3) If a question arises as to which High Court shall give effect to a direction, order or decree of the Supreme Court, the decision of the Supreme Court on the question shall be final.
Article 188: Review of Judgments or Orders by the Supreme Court
The Supreme Court shall have power, subject to the provisions of any Act of [Majlis-I-Shoora (Parliament)] and of any rules made by the Supreme Court, to review any judgment pronounced or any order made by it.
Article 189: Decisions of Supreme Court binding on other Courts
Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan.
Article 190: Action in aid of Supreme Court
All executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court.
Article 191: Rules of Procedure
Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court.
In the Panama Case, one very important question raised was:
“What is the scope of the proceedings before Supreme Court under Article 184(3) of the Constitution and whether disputed or intricate questions of fact can be decided in such proceedings with or without recording of evidence”?
The answers to above question, given in the order by all the five members of the bench in their separate notes, address all the objections of the respondents. However, in a section of media, political rallies and gatherings, an impression is being continuously given that the apex court exceeded its jurisdiction. This claim of Nawaz Sharif, his supporters and some members of the legal fraternity is legally and factually wrong.
The following points, facts, arguments, counter arguments and conclusions mentioned in the judgement of April 20, 2017 itself testify that objections raised vis-à-vis scope and import of Article 10A, Article 184(3) and Article 187(1) were discussed and adjudicated and the order is strictly in accordance with law, and there is no violation of the Constitution as alleged by the respondents, and their supporters:
- On the issue of the scope of jurisdiction under Article 184(3) of the Constitution, the petitioners placed reliance on the cases of Watan Party and another v. Federation of Pakistan and others (PLD 2011 SC 997), Workers’ Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2012 SC 681), Muhammad Azhar Siddiqui and others v. Federation of Pakistan and others (PLD 2012 SC 774), Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132), Watan Party and others v. Federation of Pakistan and others (PLD 2012 SC 292) and Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. and others v. Federation of Pakistan through Secretary Ministry of Interior and others (PLD 2007 SC 642).
- It was also argued by the petitioners that in an appropriate case, the Supreme Court could record evidence so as to ascertain a fact as held in the case of Air Marshal (Retd.) Muhammad Asghar Khan v. General (Retd.) Mirza Aslam Baig, Former Chief of Army Staff and others (PLD 2013 SC 1).
- A valid point raised by Mr. Makhdoom Ali Khan, counsel of Mian Muhammad Nawaz Sharif, was that the bar for disqualification under Article 62(1)(f) of the Constitution was higher than the bar for disqualification under section 99(1)(f) of the Representation of the People Act, 1976 [ROPA] because for the constitutional disqualification a prior declaration by a court of law is required whereas the said requirement is not there for the statutory disqualification. The Court resorted to both provisions for disqualifying Nawaz Sharif in its final order of July 28, 2017. The reasons given for the same can be debated and disagreements within the framework of law should be welcomed. However, derogatory remarks and scandalizing the apex court for political ends should be avoided.
- Makhdoom Ali Khan referred to the case of Dr. Sher Afgan Khan Niazi v. Mr. Imran Khan (Reference No. 1 of 2007) wherein Imran Ahmad Khan Niazi, one of the present petitioners, had successfully maintained before the Election Commission of Pakistan that post-election disputes fell only under Article 63 and not under Article 62 of the Constitution. It was, however, conceded by him that a decision of the Election Commission of Pakistan is not binding upon Supreme Court.
- Salman Akram Raja, representing the offspring of Nawaz Sharif, argued that in exercise of jurisdiction under Article 184(3) of the Constitution, the Supreme Court ordinarily did not record evidence as no right of cross-examination of witnesses was available, besides the absence of any right of appeal and, therefore, in an appropriate case it may be argued that “rendering a finding of fact in exercise of such jurisdiction may militate against the Fundamental Right guaranteed by Article 10A of the Constitution regarding fair trial and due process”.
- Ashtar Ausaf Ali, the Attorney-General for Pakistan, pointed out that the jurisdiction invoked was that under Article 184(3) of the Constitution and the main prayer made was in the nature of a writ of quo warranto. He argued that it was not the practice of Supreme Court to entertain and proceed with such a case involving election to the Parliament under its original jurisdiction in the first instance and such issues were generally entertained by this Court in its appellate jurisdiction. He maintained that “a declaration made by Supreme Court was to be binding on all the other courts and tribunals in the country and, therefore, determination of a fact by this Court in exercise of its original jurisdiction should sparingly be resorted to “because Supreme Court may not be in the best position to record evidence, there is no appeal provided against a decision rendered in the said jurisdiction and the Fundamental Right under Article 10A of the Constitution may be jeopardized in such a process”. He also referred to the case of Rana Aftab Ahmad Khan v. Muhammad Ajmal (PLD 2010 SC 1066) to urge that “intricate questions of fact requiring recording of evidence may not be resolved by this Court in its jurisdiction under Article 184(3) of the Constitution”.
- Justice Asif Saeed Khan Khosa, heading the five-member bench in Panama Case, in Para 66 of his order noted as under:
The questions most hotly debated by the learned counsel for the parties during the hearing of these petitions have been as to what is the scope of the proceedings before this Court under Article 184(3) of the Constitution and as to whether disputed or intricate questions of fact can be decided in such proceedings with or without recording of evidence or not. It was decided by this Court on November 03, 2016 with reference to some precedent cases that these petitions involved some serious questions of public importance with reference to enforcement of some Fundamental Rights conferred by Chapter 1 of Part II of the Constitution and, therefore, the same were maintainable before this Court under Article 184(3) of the Constitution. On that occasion, none of the parties to these petitions raised any objection to competence and maintainability of these petitions and even during the hearing of these petitions no such objection has been raised at any stage of the protracted hearings. In his two concise statements submitted by respondent No. 1 maintainability of these petitions under Article 184(3) of the Constitution had not been contested and even the immunity available to a Prime Minister in some matters under Article 248 of the Constitution was not claimed.
[underlined for emphasis]
- Nobody in media is referring to the order of the Supreme Court of November 3, 2016, which was never contested by Nawaz and his offspring and Ishaq Dar. It attained finality and later on raising an objection on jurisdiction was and is nothing but an afterthought.
- It was agreed by all the parties that the matter was of immense public importance and involved enforcement of some fundamental rights guaranteed by the Constitution. In view of this, the respondents before the Supreme Court agreed that the petitions filed under Article 184(3) of the Constitution were competent and maintainable under Article 184(3) of the Constitution.
- It was also not disputed that the remedy of filing an election petition before an Election Tribunal under Article 225 of the Constitution was not available at this juncture. The Speaker of the National Assembly could have referred the matter to the Election Commission of Pakistan under Article 63(2) of the Constitution but he dismissed various petitions filed before him against the members of the ruling party, and selectively forwarded those filed against members of Opposition. Had he filed all or rejected all, taking up of cases by Supreme Court under Article 184(3) could have been averted and the parties could have approached Election Commission or Islamabad High Court, as the case may be.
- The above was the background under which the Supreme Court entertained the petitions under Article 184(3) of the Constitution.
- As regards the argument that the Supreme Court could not disqualify the three-time elected Prime Minister as the court of first instance is addressed by Justice Asif Saeed Khan Khosa as under:
“It is said that how highsoever you may be the law is above you. It is in such spirit of democracy, accountability and rule of law that this Court would not give a Prime Minister/Chief Executive of the Federation a field day merely because no other remedy is available or practicable to inquire into the allegations of corruption, etc. leveled against him or where such inquiry involves ascertainment of some facts. It is not for nothing that Article 187(1) of the Constitution has empowered this Court to do “complete justice” where all other avenues of seeking justice are either unavailable or blocked”.
In view of above, it can be seen that issue of jurisdiction under Article 184(3) read with Article 187(1) is elaborately and authentically adjudicated by the Supreme Court and the consent of parties was obtained as mentioned in the order dated November 3, 2016.
The allegations by respondents that they were condemned unheard and the right under Article 10A was denied are also totally unfounded and against the facts. They submitted documents and availed full opportunity of being heard. In fact, they deliberately withheld evidence that attracts Article 129(g) of Qanoon-e-Shahadat Order, 1984. They even fabricated the documents as held in the final judgment of July 28, 2017, for which trial is to be held by the competent court.
There was no violation of Article 10A as held in Para 77 of the order by Justice Asif Saeed Khan Khosa as under:
“It was also contended by the learned counsel for the private respondents that in exercise of this Court’s jurisdiction under Article 184(3) of the Constitution ordinarily no evidence is recorded, no right of cross-examination of witnesses is available and no right of appeal exists against the decision rendered and, therefore, it can be argued that rendering a finding of fact in exercise of such jurisdiction may militate against the Fundamental Right guaranteed by Article 10A of the Constitution regarding fair trial and due process. Article 10A of the Constitution provides as follows: 10A. For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.”
There is hardly any “determination” of civil rights of the private respondents involved in the present proceedings and no “trial” of the said respondents on any “criminal charge” is being conducted in these proceedings and, therefore, the said contention has failed to impress us. The case in hand is akin to the cases of Mohtarma Benazir Bhutto and another v. President of Pakistan and others (PLD 1998 SC 388) clarified in Mohtarma Benazir Bhutto v. President of Pakistan and 2 others (PLD 2000 SC 77) and Air Marshal (Retd.) Muhammad Asghar Khan v. General (Retd.) Mirza Aslam Baig, Former Chief of Army Staff and others (PLD 2013 SC 1) wherein the constitutional aspects of the cases were decided by this Court under Article 184(3) of the Constitution whereas the criminal aspects of the matters were left to be attended to by the appropriate investigation agencies or criminal courts”.
It needs to be highlighted that jurisdiction under Article 184(3) of the Constitution is inquisitorial in nature rather than adversarial and while exercising such jurisdiction the Supreme Court can ascertain, collect and determine facts where needed or found necessary. In the case of Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. and others v. Federation of Pakistan through Secretary Ministry of Interior and others (PLD 2007 SC 642) it was observed that there was a “judicial consensus” on the scope of proceedings under Article 184(3) of the Constitution and that even disputed questions of fact could be looked into where a Fundamental Right had been breached provided there was no voluminous evidence to be assessed and no intricate disputed questions of fact were involved.
In the case of Lt. Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore (PLD 1970 SC 98), the Supreme Court clarified that where the question was of a right to continue in public office, it could interfere “through proceedings not exactly as quo warranto but in the nature of quo warranto with a wider scope”.
The Supreme Court also rejected the argument of Attorney General of Pakistan that a member of the National Assembly did not hold a “public office” and, therefore, a Constitution Petition in the nature of quo warranto was not maintainable against him either before a High Court under Article 199(1)(b)(ii) or before this Court under Article 184(3) of the Constitution. Mr. Justice Asif Saeed Khan Khosa held that “it failed to find favour with me as it has already been held by this Court in the case of Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Takht Bhai and 10 others (PLD 1975 SC 244) that the words “public office” are much wider than the words “service of Pakistan” and they include those who perform legislative function. A similar view was also taken by this Court in the case of Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others (PLD 2012 SC 1089)”.
The objection that Supreme Court acted as trial court while exercising powers under Article 184(3) read with Article 187(1) is totally misconceived. In the case of Air Marshal (Retd.) Muhammad Asghar Khan v General (Retd.) Mirza Aslam Baig, Former Chief of Army Staff and others (PLD 2013 SC 1) evidence was in fact recorded by the Supreme Court and it was a petition filed under Article 184(3) of the Constitution.
In the case of General Secretary, West Pakistan Salt Miners Labour Union (CBA) Khewra, Jhelum v The Director, Industries and Mineral Development, Punjab, Lahore (1994 SCMR 2061), it was clearly held by the Supreme Court that “an exercise of finding facts can be resorted to in proceedings under Article 184(3) of the Constitution”.
In the past, while proceeding under Article 184(3) of the Constitution, in many cases, the Supreme Court even constituted commissions with the task to inquire into some facts by recording evidence and to determine questions of fact on behalf of the Supreme Court—the leading cases were that of Ms. Shehla Zia and others v WAPDA (PLD 1994 SC 693), Watan Party and others v Federation of Pakistan and others (PLD 2012 SC 292) and Suo Motu case No. 16 of 2016 (Quetta lawyers’ carnage case).
Justice Sh. Azmat Saeed in Para 9 of his order made the following observations:
“Thus, to exercise authority on their behalf by their chosen representatives is the most foundational of all the Constitutional rights of the people of Pakistan, if a disqualified person, as alleged, usurps such role and thereafter becomes the Prime Minister surely such right of the people is affected and is liable to be enforced by this Court. The contentions of the learned Attorney General for Pakistan to the contrary cannot be accepted and it is reiterated that these Petitions under Article 184(3) of the Constitution are maintainable”.
In the light of above, it can be safely concluded that in the Panama Case, the Supreme Court did not deviate from its earlier practice of exercising extraordinary jurisdiction—vested in it under the Constitution of Pakistan—where issues of public importance affecting fundamental rights were involved.
Justice Sh. Azmat Saeed in Para 19 of his note held that “………..Even, if a delinquent person offers a perfect, legally acceptable explanation for the source of funds for acquiring the undeclared assets, he cannot escape the penalty of rejection of his Nomination Papers or annulment of his election. Such is the law of the land and as has been repeatedly and consistently interpreted by this Court, including in the judgments, reported as (1) Muhammad Jamil v. Munawar Khan and others (PLD 2006 SC 24), (2) Khaleefa Muhammad Munawar Butt and another v. Hafiz Muhammad Jamil Nasir and others (2008 SCMR 504) and (3) Muhammad Ahmad Chatta v. Iftikhar Ahmad Cheema and others (2016 SCMR 763)”.
Thus the argument that Nawaz Sharif could not have been disqualified for merely omitting some asset in nomination paper is not sustainable. Lying on oath was sufficient ground for disqualifying him.
The Supreme Court of Pakistan held in Muhammad Siddique Baloch v Jehangir Khan Tareen (PLD 2016 Supreme Court 97) that a person who was 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”. Implementing, the command of law, the Supreme Court rightly invoked section 99(1)(f) of the ROPA as Nawaz Sharif deliberately concealed income from Capital FZE as well as concealed ‘asset’ (closing balance of account maintained in UAE). Section 99(1)(f) of the ROPA reads as under:
“99. Qualifications and disqualifications.- (1) A person shall not be qualified to be elected or chosen as a member of an Assembly unless- ———————
(f) he is sagacious, righteous and non-profligate and honest and ameen”.
From Tax Year 2008 onwards, Nawaz Sharif was resident (the term as defined in section 82 of the Income Tax Ordinance, 2001). He was thus liable to tax for both Pakistan and foreign source income. He was bound by law to offer for tax salary income from Capital FZE, on due or receipt basis, whichever matures earlier [section 12 read with section 69 of the Income Tax Ordinance, 2001]. He did not declare any such income in his tax returns and nomination papers filed on 31 March 2013. He also concealed the bank account maintained in UAE. The judgement of Supreme Court for disqualifying Nawaz Sharif is based on report of Joint Investigation Team (JIT) which was confronted to him and he also filed a reply. Those claiming that no case is proved against Nawaz Sharif should read this part of JIT report which says:
“Further, evidence thus procured reveals that Mian Nawaz Sharif, Respondent No 1, was the chairman of the board for Capital FZE from August 7, 2006 until April 20, 2014 at a salary of AED 10,000. Further, evidence revealed that this salary was revised on February 02, 2007 vide Employment Contact Amendment-Form 9, duly signed by Respondent No 1, filed with JAFZA. On the basis of this employment Respondent No 1 was able to procure “Iqama” dated 5-7-2009 and valid up to 4-6-2015 to work and reside in Dubai (Annex G)”.
In its order of July 28, 2017, the Supreme Court noted that Nawaz Sharif
“denied withdrawal of salary, but payment of salaries to all employees electronically, through the Wage Protection System, under Ministerial Resolution No. (788) for 2009 on Wage Protection used by United Arab Emirates Ministry of Labour and Rules 11(6) and 11(7) of the Jebel Ali Free Zone Rules, would belie his stance”.
Rule 11(7) says: A Client shall be registered in WPS and shall transfer the Employees’ salaries through the WPS to confirm that all emoluments due have been paid between the 1st and 15th of every month. A Client failing to register in the WPS, as required by Jafza, may suffer penalties. A Client is required to keep certified copies of certificates of payments – duly signed by both the Employee and the authorised signatory of the Client approved by Jafza. A Client shall have available for inspection such certified copies of the certificate of payment.
Capital FZE did not produce evidence in Supreme Court that it was penalized for violating the above rule by not paying salary to Nawaz Sharif. If salary was paid but not withdrawn by Nawaz Sharif, it could not escape taxability under section 12 read with section 69 the Income Tax Ordinance, 2001 and the closing balance was to be declared on asset side in wealth statement and in nomination papers. If salary was not paid by Capital FZE, it was a violation of the law of UAE.
It is also worth mentioning that the deadline for implementing WPS for firms with more than 100 workers was before November 30, 2009, companies with a workforce of 15 to 99 by February 28, 2010, and companies with less than 15 workers before May 31, 2010. Companies failing to meet the said deadlines were to be denied new work permits. It is evident from the record that Nawaz Sharif was issued second Iqama [7104231/201/06 expiring on June 4, 2015]—earlier one was issued on July 6, 2009, that expired on July 5, 2012. Had salary not been transferred to his account, Capital FZE could not get second Iqamah for him.
Undoubtedly, Nawaz Sharif was guilty of concealing the fact of employment with Capital FZE, tax evasion and continuing the employment even after taking the oath of Prime Minister on June 5, 2013. Those who say he is not removed on corruption charges must read section 78(3) of Representation of People Act, 1976 that defines filing of false declaration as “corrupt practice”. Indeed, the disqualification of Nawaz Sharif by Supreme Court for filing false declaration is strictly in accordance with the law of this land.
The views expressed in this article are those of the authors and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which they might be associated.