No more commissions please

The tug of war on forming a commission under the Pakistan Commissions of Inquiry Act 1956 (the government has already written a letter to this effect) or under a special law, the ‘Panama Papers [inquiry and trial] Act 2016’ – to be headed by the chief justice of Pakistan and two other judges to be nominated by him – proposed by the opposition parties, has created a political deadlock.

The Supreme Court should not enter into an exercise that has serious political connotations, especially when there is no consensus on the Terms of Reference (ToRs) between the government and the opposition. The commission is not an answer to the prevailing crisis, which has political, legal and ethical dimensions.

The issues of countering corruption, flight of capital and tax avoidance have to be taken up on an urgent basis, for which all institutions will have to be restructured and reformed. Strong political will and consensus, which are presently lacking, are needed for this purpose. It is not an easy task, but it can be achieved as has been by many countries such as Singapore, Malaysia and Indonesia, in recent years. All the political parties must realise that it is high time to forge an alliance to do something tangible to uproot corruption.

The chief of army staff, on April 19, 2016, made it clear that the “Ongoing war against terrorism and extremism being fought with the backing of entire nation cannot bring enduring peace and stability unless the menace of corruption is not uprooted. Therefore, across-the-board accountability is necessary for the solidarity, integrity and prosperity of Pakistan.”

Across-the-board accountability starts from politicians, high-ranking civil and military officials and judges. The question is, who will scrutinise their declarations of their assets and liabilities at home and abroad (including those held benami)? For this, there is no need for any judicial/inquiry commission. The best way is to constitute by law a permanent joint ‘parliamentary standing committee on asset disclosures and investigation’, representing senators and members of the National Assembly, from all parties.

As a matter of principle, accountability should not be Nawaz-specific; although, as a matter of priority, it may start from the sitting prime minister. He has already offered himself and his family up for probe, and the house committee can proceed with his request to finalise the proceedings as early as possible.

It should be kept in mind that the resources of the Supreme Court are scarce, and it is already over-burdened with the task of rendering justice in thousands of cases every year. Notwithstanding the excessive burden, the apex court, as the custodian of the constitution, must act as the final arbitrator if any conflict arises amongst committee members or if they want guidance from the court. This was held and explained in great detail by the Indian Supreme Court, in the case of Ram Jethmalani and Others v Union of India and Others [2011 PTR 1933 (S C Ind)], when similar inquiries were started in India.

Before starting the probes, parliament should pass a law to punish those who are guilty of hiding untaxed/undeclared assets abroad. India did it last year by passing the Undisclosed Foreign Income and Assets (Imposition of Tax) Act, 2015. For details, see ‘Hunting for black money’, published in these pages on March 29, 2015. The Federal Board of Revenue (FBR) should provide the declarations filed by elected representatives, public officeholders and state functionaries, whenever required by the house committee.

The committee should have the power to compare declarations filed under the Civil Servants Act, 1973, the Army Act, 1952 and related rules, the Representation of Peoples Act, 1976, the Senate (Election) Act, 1975 and Rule 4 of the Political Parties Rules, 2002 with those filed under the Income Tax Law. In case of any discrepancies or concealment, the committee could ask the Election Commission of Pakistan, the National Accountability Bureau, the Federal Investigation Agency, the FBR or the military authorities, as the case may be, to take action under the law.

The Panama Papers and other similar disclosures made so far or in the future constitute the name and shame game for tax cheats, corrupt politicians, public officials, drug barons and other criminals that undermine the state institutions, destroy the democratic dispensation and promote a culture of greed. This campaign, however, should not violate anyone’s fundamental rights, including public officeholders. The probe into assets and tax declarations should be done legally and democratically, and not through malicious media campaigns and mudslinging in TV talk shows.

Democracy and rule of law go hand in hand and without transparency and accountability both remain mere clichés. If lawmakers are found wanting, they must be punished more rigorously than others, as they are supposed to be the custodians of public faith and money. As a starting point, the finance minister, being in charge of the FBR, should appear before the house and explain why tax officials have failed to take action, under the law, against the majority of the members of parliament who live lavishly, but declare shamelessly low incomes. All this is evident from the tax directories for the 2013-2014 tax year, published by the FBR. Why has the FBR not taken any action against them so far?

The answer to this question will expose how the political masters cripple the state institutions. The FBR must start taking action against parliamentarians who avoid taxes. Otherwise, the finance minister can never promote a tax-paying culture. When all is said and done, nothing will change if the elected members of parliament, public officeholders, bureaucrats, generals and judges are not made answerable for their assets (in their own name, the name of a relative or benami).

As a first step towards reforms, accountability should start from parliament, of all the parliamentarians and state functionaries. Those found guilty should be punished adequately and expeditiously, after the due process of law. There is no other way to deal with the situation. Mr Prime Minister, addressing a public gathering will not help. Please appear before parliament without wasting any more time. Please present all the necessary documents to prove your innocence – and end the prevailing impasse.

The writer is an advocate of the Supreme Court and adjunct faculty at LUMS.

Email: ikram@huzaimaikram.com

Twitter: @drikramulhaq