The July 28 judgement of the Supreme Court (SC) disqualifying the sitting Prime Minister of Pakistan still offers a challenge of reconciliation to all rational minds. The judgement, which is a public document now, opens the canopy of Pakistan’s judicial system. The judgement is awash with multiple grave flaws.
To my previous column on the same topic, several responses surfaced in both print and electronic media, targeting my arguments but without mentioning my name. The responses merit further explanation of my argument in the form of this piece.
In para 4 of the judgement, the SC wrote: “[T]he respondent [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 [UAE] Ministry of Labour and Rules 11(6) and 11(7) of the Jebel Ali Free Zone Rules, would belie his stance;…”. Here, the SC assumed that the electronic payment of salary to Nawaz Sharif must have taken place through the Wage Protection System functional in the UAE. Ancillary to this assumption was another assumption: the rules were inviolable. The assumptions were grave mistakes and had a negative bearing on the judgement. The SC overlooked the fact that the mere presence of the relevant UAE rules did not mean the occurrence of the event (i.e. the electronic payment of salary), as with rules there are always present penalties on the violation of rules. Whereas the SC assumed that the relevant UAE rules must have been abided by, the SC failed to consider that these rules could have been evaded or violated. That is, the SC considered the rules in an absolute sense overlooking the fact that the presence of rules did not exclude the possibility for their evasion or violation. If the SC was so determined, it should have got hold of Nawaz Sharif’s bank statement showing the payment of salary to his bank account. Without relying upon Nawaz Sharif’s bank statement (or without mentioning even his bank account in the judgement) as proof, the SC could not conclude that Nawaz Sharif was lying. Hence, the mere presence of rules cannot belie the stance of Nawaz Sharif that he did not withdraw salary. This is how the SC made a misjudgment.
To extend this point further, the afore-quoted para of the judgement indicates that the SC took the case of Nawaz Sharif, Respondent No.1, in isolation, overlooking the fact that both employee (Nawaz Sharif) and employer (Hassan Nawaz, as Respondent No. 8) were being represented in the court together. When the employer was claiming that he did not pay the salary and the employee was claiming that he did not receive the salary, the SC could not decide on its own that the salary was paid and received to be considered an “asset”. Regarding the salary, the claims (or statements) submitted by Nawaz Sharif could not be taken in isolation from the claims (or statements) submitted by Hassan Nawaz. Without any solid proof (and the presence of the UAE labour laws were not proof), the SC could not assume that both were lying. The only proof to hinge on was bank statements. This is the point where the SC overlooked the importance of an undeniable proof to validate its decision. This is how the judgment personified the miscarriage of justice.
A team of critics to my line of argument has forwarded the point that the judgement would be justified if Section 12 of the Income Tax Ordinance 2001 were read with Section 69 of the same Ordinance. In this regard, it is pertinent to see first what these both sections say. Section 12 (2) of the Income Tax Ordinance 2001 says: “Salary means any amount received by an employee from any employment, whether of a revenue or capital nature”. Section 69 (a) comes with a proviso and says: “a person shall be treated as having received an amount, benefit or perquisite, if it is actually received by the person.” In Pakistan, there are two established modes of payment and receipt of salary: in cash and by cheque. In both cases, the employer keeps the signature of the employee as the proof of the payment and receipt of salary. However, Section 69 (c) says: “a person shall be treated as having received an amount, benefit or perquisite, if it is made available to the person”. Section 69 (c) is applicable in two cases. First, where an employee receives a cheque by post. Second, where the salary is deposited (or transferred) into the given bank account of the employee. In this regard, in the UAE, where the mode was the “payment of salaries to all employee electronically,” bank statements of either the employer (Hassan Nawaz, or of the company, Capital FZE) or the employee (Nawaz Sharif) could be the proof of the payment and receipt of the salary “made available”. However, the SC did not count on any such proof to issue its judgement. This flaw – the absence of an undeniable, irrefutable proof – in the judgement invalidates the 28 July judgment.
Similarly, a team of critics to my line of argument is of the view that consulting the Black’s Law dictionary was justified. The SC consulted the dictionary for the definition of “asset” but its apologists thinks that the definition of “salary” also required the help of the Black’s Law dictionary.
In this regard, even if this interpretation were assumed true, it is important to understand that the Black’s Law dictionary is cited as a secondary legal authority for understanding legal briefs and opinions, as is a practice in the SC of the US. The same can also be done in Pakistan. However, a primary legal authority is a document that establishes law such as the Income Tax Ordinance 2001 existing in Pakistan. Moreover, dictionaries are ambulatory in their description and new editions bring new changes, compared to Ordinances which are laws, rigid in descriptions and amenable only to amendments. Having found no definition of “asset” or even “salary” in The Representation of People Act (ROPA) of 1976, the first choice of consultation before the SC was the Income Tax Ordinance 2001 because the Election Commission (EC) of Pakistan demands and scrutinizes wealth statements of candidates in light of this Ordinance. However, the SC overlooked this important point. The SC could have overlooked the Income Tax Ordinance 2001 in two cases. First, in case the Ordinance had been devoid of the definition of an “asset” or “salary.” Secondly, in case the definitions of “asset” or “salary” given in the Income Tax Ordinance 2001 had been in dispute with the definitions of “asset” or “salary” given in any other statute of the state. Interestingly, neither of theme was the case. The SC overlooked the fact that the EC called upon the candidates for the declaration of assets (in 2013) through their wealth statements, not in light of any dictionary but in light of the Income Tax Ordinance 2001, which was the first legal authority in Pakistan. In principle, through his nomination papers, Nawaz Sharif did not violate the terms of Section 12 (2) (f) of the ROPA. On the other hand, the SC has set a precedent of relying upon dictionaries for the definitions not given in the ROPA, where there is present no definition, thereby making the dictionaries first legal authority in Pakistan.
Under the Constitution of Pakistan, though the SC is vested with the task of the interpretation of law, the Constitution does not confer upon the SC the authority to make arbitrary and invalid choices in interpreting a law. Similarly, though the constitutional authority to issue a decision is the SC, the task of rationalizing the decision is up to the public at large. The flaws in the judgement militate against the rationalizing ability of people.