Period Suitable for Disqualification of Mian Muhammad Nawaz Sharif
The integrity of the Supreme Court of Pakistan seems to be at stake owing to the ongoing political situation in the country. Every news channel seems to have taken great interest in highlighting the issue of contempt of the Supreme Court of Pakistan committed by political leaders, including the former Prime Minister, Mr Mian Nawaz Sharif, his daughter Ms Maryam Nawaz Sharif (also known as Ms Maryam Safdar), Mr Muhammad Tallal Badar Chaudhary (Minister of State for Interior Affairs), Mr Daniyal Aziz Choudhry (Minister for Privatisation) and Mr Syed Nehal Hashmi who has been a member of the Senate of Pakistan from March 2015 to February 2018. This article attempts to visit the legal provisions surrounding the disqualification of Mian Muhammad Nawaz Sharif, the reasonable period of his disqualification and the fate of supremacy of rule of law in Pakistan.
All of the above-mentioned people, except for Ms Maryam Nawaz Sharif, have previously held or currently represent the Government of Pakistan in public offices of supreme importance as far as the governance of the country is concerned. Mr Muhammad Tallal Badar Chaudhary and Mr Daniyal Aziz Choudhry were appointed as Ministers of State in August 2017 following the disqualification of former Prime Minister Mian Muhammad Nawaz Sharif, as a result of the landmark decision given by the Supreme Court of Pakistan on 28th July 2017 (available at http://www.supremecourt.gov.pk/web/user_files/File/Const.P._29_2016_28072016.pdf).
Contents of the said judgment dated 28th July 2017 are straightforward and easy to understand as to why Mr Mian Muhammad Nawaz Sharif was disqualified: it was because of dishonestly withholding a true reflection of his income through various sources. Paragraph 15 of the said judgment gives reference to those sources by stating the following:
“It is hereby declared that having failed to disclose his un-withdrawn receivables constituting assets from Capital FZE, Jebel Ali, UAE in his nomination papers filed for the General Elections held in 2013 in terms of Section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).”
Section 12(2)(f) of the Representation of the People Act 1976 states that, “Every nomination shall be made by a separate nomination paper in the prescribed form which shall be signed both by the proposer and the seconder and shall, on solemn affirmation made and signed by the candidate.” The said nomination paper must also accompany a statement of the candidate’s assets and liabilities and those of his or her spouse and dependents on the prescribed form as on the preceding thirtieth day of June.
The judgment was concluded based on the investigation carried out by a Joint Investigation Team (JIT) constituted as a result of an earlier judgment given by the Supreme Court dated 20th April 2017. The judgment explained that in normal circumstances investigation could be carried out by the National Accountability Burau (NAB), however, the unwillingness of its Chair became the paramount reason to establish the JIT.
A careful read of the Supreme Court’s judgment suggests that the court did give a reasonable opportunity to Mian Muhammad Nawaz Sharif in the interests of justice and a fair trial. The JIT was required to submit its findings within 60 days from its formulation under the supervision of a specialised Bench. The honourable Chief Justice of Pakistan constituted the implementation Bench consisting of the following people:
- Ejaz Afzal Khan, J.,
- Justice Sh. Azmat Saeed and
- Justice Ijaz ul Ahsan.
The said Bench through its order dated 05th May 2017 constituted the JIT consisting of the following people to head the JIT:
- Mr. Amer Aziz, an Officer of (BS-21) who is on deputation with the National Institute of Banking and Finance (NIBAF),
- Mr. Bilal Rasool, Executive Director, Securities & Exchange Commission of Pakistan (SECP),
- Mr. Irfan Naeem Mangi, Director NAB (BS-20),
- Brig. Muhammad Nauman Saeed from ISI,
- Brig. Kamran Khurshid from M.I. and
- Mr. Wajid Zia, Additional Director General (Immigration), Federal Investigation Agency (FIA).
The JIT was required to investigate the case and collect evidence, if any, showing that Mian Muhammad Nawaz Sharif or any of his dependents or benamidars owned, possessed or had acquired assets or any interest therein disproportionate to their known means of income. Mian Muhammad Nawaz Sharif, Mr Hussain Nawaz Sharif and Mr Hassan Nawaz Sharif were directed to appear before and associate themselves with the JIT as and when required. The JIT could also examine the evidence and material, if any, already available with the FIA and NAB relating to or having any nexus with the possession or acquisition of the aforementioned flats or any other assets or pecuniary resources and their origin.
The Joint Investigation Team (JIT) gave its detailed report on 10th July 2017, highlighting a number of reservations in paragraph 3 of the judgment. In my understanding, the two most significant reservations, which later became reasons of Mr Muhammad Nawaz Sharif’s disqualification were the following:
“(a) That failure of Mr Muhammad Nawaz Sharif to disclose his assets deposited in his account on account of his being Chairman of Capital FZE would also call for his disqualification, as it being an asset for all legal and practical purposes was required to be disclosed under Section 12(2)(f) of the Representation of the People Act, 1976 and,
(b) That material already brought on the record and collected through the JIT leave no doubt that the assets of Mian Muhammad Nawaz Sharif, his children and benamidars are disproportionate to their known sources of income and that their failure to satisfactorily account for them would inevitably entail disqualification of respondent No. 1 in terms of Section 9(a)(v) of the National Accountability Bureau Ordinance, 1999.”
In terms of Mian Muhammad Nawaz Sharif’s disqualification, reliance had to be placed on the ordinary meaning of the word “asset” since it has not been defined in the Representation of the People Act 1976. Paragraph 13 of the judgment states that, “The word asset as defined in Black’s Law Dictionary means and contemplates “an asset can be (i) something physical such as cash, machinery, inventory, land and building (ii) an enforceable claim against others such as accounts receivable (iii) rights such as copyright, patent trademark etc (iv) an assumption such as goodwill.”
The definition of the word “receivable” as used in the above-mentioned definition and as given in Black’s Law Dictionary is also relevant which means and contemplates “any collectible whether or not it is currently due. That which is due and owing to a person or company. In book-keeping, the name of an account which reflects a debt due. Accounts receivable: a claim against a debtor usually arising from sales or services rendered.” The word “receivable” has a similar connotation according to the Business Dictionary which reads as an “accounting term for amount due from a customer, employee, supplier (as a rebate or refund) or any other party. Receivables are classified as accounts receivable, notes receivable etc and represent an asset of the firm.”
The judgment further states at paragraph 13 the following:
“When we confronted, the learned Sr. ASC for respondent No. 1, whether the said respondent has ever acquired work permit (Iqama) in Dubai, remained Chairman of the Board of Capital FZE and was entitled to salary as such, his reply was in the affirmative with the only addition that respondent No. 1 never withdrew any salary. This admission was reiterated in more categorical terms in the written arguments filed by the learned Sr. ASC for respondent No. 1 in the words as under:
“So far as the designation of Respondent No. 1 as Chairman of the Board is concerned, this was only a ceremonial office acquired in 2007 when the respondent No. 1 was in exile, and had nothing to do with the running of the Company or supervising its affairs. Similarly, the respondent No. 1 did not withdraw the salary of AED 10,000. Thus, the salary shown in the Employment Contract in effect never constituted an “asset” for the respondent No. 1.”
It has not been denied that respondent No. 1 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. When the un-withdrawn salary as being receivable is an asset it was required to be disclosed by respondent No. 1 in his nomination papers for the Elections of 2013 in terms of Section 12(2)(f) of the ROPA. Where respondent No. 1 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.”
For all the reasons stated above, Mr Muhammad Nawaz Sharif was disqualified to hold the public office on 28th July 2017. Further directions were given to the NAB (National Accountability Bureau) stating that they shall “within six weeks from the date of this judgment prepare and file before the Accountability Court, Rawalpindi/Islamabad, the following References, on the basis of the material collected and referred to by the Joint Investigating Team (JIT) in its report and such other material as may be available with the Federal Investigating Agency (FIA) and NAB having any nexus with the assets or which may subsequently become available including material that may come before it pursuant to the Mutual Legal Assistance requests sent by the JIT to different jurisdictions.” The number of directions could be seen at paragraph 14 of the said judgment dated 28th July 2017.
While the entire nation is waiting for a final report/decision from the Accountability Court, Rawalpindi/Islamabad, a legal challenge as to the duration of Mr Mian Muhammad Nawaz Sharif’s disqualification from holding public office is being addressed. As far as the arguments heard on this point are concerned, a suggestion was made by the late Ms Asma Jahangir on 08th February 2018 responding to the Chief Justice’s question on this issue that the disqualification sentence be decided on a case-to-case basis and the maximum period be five years, on which the CJP ruled that it was the sole obligation of the top court to determine the duration of the disqualification period of a public representative.
However, after having read the judgment dated 28th July 2017 of the Supreme Court of Pakistan, a mere revisit of the same judgment will unveil the period of disqualification on the current issue and any future disqualifications of an identical nature. This is important, as also expressed by the late Ms Asma Jahangir on 08th February 2018 that, “Nobody was declared eligible and ineligible for holding a public office before 1985. Such ‘high-standard’ persons were unavailable in the country.”
The duration in question is very evidently defined under section 15 of the National Accountability Ordinance which states that,
“(a) Where an accused person is convicted of an offence under section 9 of this ordinance, he shall forthwith cease to hold public office, if any, held by him and further he shall stand disqualified for a period of ten years, to be reckoned from the date he is released after serving the sentence, for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or in service of Pakistan or of any province.”
(http://www.nab.gov.pk/Downloads/nao.asp#Disqualification_19)
The above provision makes it very clear that the period of 10 years should start from the date when Mr Mian Muhammad Nawaz Sharif is released after serving the sentence under Section 15(a) of the National Accountability Ordinance. It is entirely up to the Supreme Court to determine the time-frame i.e. whether to start the clock from the date of its earlier judgment of 28th July, 2017, or wait for a decision by the Accountability Court, Rawalpindi/Islamabad, on this issue. In my humble view, the clock should start from the time Mian Muhammad Nawaz Sharif is released from serving the sentence, if any, handed to him by the Accountability Court. The National Accountability Ordinance also contains relevant provisions on punishment.
Having considered all of the above, one must not ignore the general perception of supporters of Mian Muhammad Nawaz Sharif and the prevailing mindset of people regarding the standard of rule of law in Pakistan. The majority view is that Supreme Court is not an independent institution, that the statements by the Chief Justice of Pakistan are merely given to gain attention, and that nothing will be achieved. It is yet to be seen whether the Supreme Court will succeed in being recognised as an independent institution. For now, it has two prominent cases in which it can give its determination regarding the period of disqualification, namely the cases of Mian Muhamad Nawaz Sharif and Mr Jehangir Tareen. If the Supreme Court of Pakistan succeeds in giving clear guidance on Article 62(1)(f) of the Constitution of Pakistan, this may serve as an eye opener for representatives hoping to hold public offices as part of their careers.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.
