The technicality that led to Nawaz Sharif's disqualification

On Friday, Prime Minister Nawaz Sharif was sent packing by the Supreme Court of Pakistan for not being 'honest' — a prerequisite for eligibility to the chief executive's office, as enshrined in Article 62 of the Constitution.

However, it was not the litany of allegations raised in the 10-volume report of the joint investigation team (JIT) tasked with probing the Sharif family's financial dealings that overwhelmed the apex court into issuing an order to disqualify Sharif. In fact, the judges dispatched nearly all of them to accountability courts to probe and judge, saying that they did not fall into the apex court's purview.

However, just one key technicality emerging from a discovery the JIT had made in the UAE gave the judges reason to disqualify Sharif directly. It was based on an allegation that Sharif's counsels had not been able to deny.

The iqama that brought Sharif down

In its report, the JIT said it had evidence directly from the UAE's Jebel Ali Free Zone Authority (Jafza), the concerned regulator, confirming that Nawaz Sharif not only served as chairman of the board of a Dubai-based company, he also drew a salary of 10,000 dirhams between Aug 7, 2006 and April 20, 2014 — till nearly a year after assuming office — but did not declare this in his nomination papers.

The Sharifs initially denied the claim.

However, upon the Supreme Court's questioning, Sharif's counsel — Khawaja Harris Ahmed — conceded before the court that Hassan Nawaz, the prime minister's younger son, was the owner of Capital FZE and Sharif its chairman. However, he insisted that though the ousted prime minister was the designated chairman, he did not draw any salary.

The purpose of the arrangement, argued the counsel, was solely to secure an iqama — a UAE work visa — which would allow the prime minister easy access to the Gulf state "in his years in exile".

However, according to a Khaleej Times report on the matter, UAE's labour laws mandate that all employees receive a salary through a bank account under the UAE's Wage Protection System (WPS), "failing which the firm can be blacklisted and shut down".

This technicality proved to be the former prime minister's undoing.

"The next question emerging for the consideration of this Court is whether respondent No. 1 [Nawaz Sharif] as a Chairman of the Board of Capital FZE is entitled to salaries and whether the salaries if not withdrawn being receivable as such constitute assets which require disclosure in terms of Section 12(2) of the Representation of the People Act (ROPA), 1976 and whether his failure to disclose them would entail his disqualification?" the court wrote in its judgement, issued Friday.

Since the word 'asset' was not defined in the ROPA, the court relied on Black's Law Dictionary to ascertain its meaning, finding that it includes:

(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 as given in the Black's Law Dictionary is also relevant, which means [...] 'any collectible whether or not it is currently due'," the court continued.

The Supreme Court also looked up the word 'receivable' in the Business Dictionary, finding that it is 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."

Sharif's fate was thus sealed.

"The definitions reproduced above leave no doubt that a salary not withdrawn would nevertheless be receivable and as such would constitute an asset for all legal and practical purposes," the court observed.

"When it is an asset for all legal and practical purposes, it was required to be disclosed by respondent No. 1 in his nomination papers in terms of Section 12(2) of the ROPA ."

The court also noted that the counsel for Sharif himself had affirmed that the prime minister did indeed acquire an iqama, that he was a chairman of the board of Capital FZE and that he was entitled to a salary — even though he insisted that the salary was never withdrawn.

"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 [making it] an asset," the court reasoned.

The court concluded that Nawaz Sharif had been 'dishonest' by not declaring this receivable salary in his nomination papers for the 2013 election, as required under 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," the court concluded.

Sharif would, therefore, have to go. All five judges concurred.



Copyright: Dawn/ Asia News network