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Huzaima Bukhari & Dr. Ikramul Haq
The Lahore Resolution of March 23, 1940, widely believed to have paved the way for a separate homeland for the Muslims of India on the basis of “two-nation” theory, received a jolt in 1971 when Bengalis claimed separate state—present day Bangladesh. Many historians, academicians and political analysts say that even after materialisation of dream on August 14, 1947, the Constitution of Islamic Republic of Pakistan [“the Constitution’] as amended by the Constitution (Eighteenth Amendment) Act, 2010, [commonly called 18th Amendment], lacks clarity about the nation’s true identity. Religious over-zealots, anti-democracy forces and proponents of obscurantism keep on saying that the country was created in the name of ‘Islam’—though multiple theological schools have serious differences and disputes on its basic concepts. In the name of religion, they advocate enforcement of all “Sharia” laws, though when asked to draft e.g. one comprehensive Islamic taxation code, sectarian connotations shun any unified text!
Ethnic identities—Punjabis, Pashtuns, Sindhis, Muhajirs, Baloch, and many more—are historic realities but are asked by clergy to say: “We are first Muslims, then Pakistanis and….nothing else”. Resultantly, even any demand for ending economic disparities through progressive taxation and/or providing fundamental facilities to residents of backward areas is taken as “threat to national unity”. The religious political parties having no concern/agenda for an egalitarian Pakistan keep on convincing the masses that their demand for equality and equal opportunity should yield to the “divine cause” of keeping them poor and deprived. Behind creation of Pakistan, they plead “holy scheme” and this justifies witch-hunting in the name of self-created “Islamic ideology”. This politicisation of Islam got credence in the dark era of General Zia and continues till today.
Since its inception, Pakistan has faced multiple crises having economic, political, judicial connotations and long periods of terrorism, especially after 9/11 to support the United States of America (USA) and its allies against the Soviet infidels. The defence analysts and military strategists (retired high-ranking officials of armed forces) appearing daily on various talk shows tell us that the USA still needs us to have a safe exit from Afghanistan. They must read the two-part series [Hidden agenda & “deal” with Taliban—I, Business Recorder, September 11, 2020 and Hidden agenda & “deal” with Taliban—II, Business Recorder, September 13, 2020].
The crux of geopolitical challenges is highlighted in above and many other articles suggesting that unless we are economically strong, there is no hope of our voice bring heard despite our status as sole Muslim country having nuke and missiles capability.
The internal strifes—political deadlock between the ruling coalition government of Pakistan Tehreek-i-Insaf (PTI) and already-in-disarray alliance of various parities under the banner of Pakistan Democratic Alliance (PDM)—are posing serious challenges for economic stability and fiscal consolidation. This is leading us to further debt enslavement and imposition of anti-growth agenda of lenders and donors—see detailed discussion in The debt debate, Business Recorder, February 3, 2017, ‘Debt debate’, Business Recorder, February 28, 2017, Debtocracy and enslavement, Business Recorder, June 15, 2018, Dealing with debtocracy, Business Recorder, February 14, 2020, Malaise of mounting debt, Business Recorder, July 24, 2020, Decades of subjugation, TNS, [Political Economy] The News, August 9, 2020 and Independence Day considerations, Business Recorder, August 14, 2020.
The long dictatorial rules muzzled all State organs—especially the judiciary that became an approving arm for many unconstitutional rules till 2007. Even during the Decade of Democracy [2008-18], on many occasions the Judiciary blatantly encroached upon the powers of Legislature and Executive that was recently very aptly summed up in an outstanding judgement by Justice Syed Mansoor Ali Shah of Supreme Court in a recent case [C.P.446-L/2019 re Mian Irfan Bashir v The Deputy Commissioner (D.C.), Lahore, etc] as under:
“Judicial overreach is when the judiciary starts interfering with the proper functioning of the legislative or executive organs of the government. This is totally uncharacteristic of the role of the judiciary envisaged under the Constitution and is most undesirable in a constitutional democracy. Judicial overreach is transgressive as it transforms the judicial role of adjudication and interpretation of law into that of judicial legislation or judicial policy making, thus encroaching upon the other branches of the Government and disregarding the fine line of separation of powers, upon which is pillared the very construct of constitutional democracy. Such judicial leap in the dark is also known as “judicial adventurism” or “judicial imperialism”….Constitutional democracy leans heavily on the rule of law, supremacy of the Constitution, independence of the judiciary and separation of powers. Judges by passing orders, which are not anchored in law and do not draw their legitimacy from the Constitution, unnerve the other branches of the Government and shake the very foundations of our democracy”.
[bold and italics by us for emphasis]
The judicial defiance of March 9, 2007 gave some hope to the people but soon it faded away when after restitution on March 16, 2009, the apex court started stifling the Legislature and Executive. The elected representatives were even forced to amend the method of selection of judges of superior courts. Many were disqualified without fair trial guaranteed as fundamental right under Article 10A of the Constitution. Powers under Article 184 read with Article 187 of the Constitution were selectively used—when not suited inordinate delay is committed e.g. in Asghar Khan’s case [Human Right Case No. 19 of 1996 decidedon October 19, 2012—2012 SCMR 2008] and in the belated judgement no direct punishment was awarded even after the following categorical fact finding:
“(5) However, in the instant case it has been established that in the general elections of 1990 an Election Cell was established in the Presidency to influence the elections and was aided by General (R) Mirza Aslam Baig who was the Chief of Army Staff and by General (R) Asad Durrani, the then Director-General ISI and they participated in the unlawful activities of the Election Cell in violation of the responsibilities of the Army and ISI as institutions which is an act of individuals but not of institutions represented by them respectively, noted hereinabove”.
(11) The Armed Forces, in discharge of their functions, seek intelligence and support from ISI, MI, etc., and on account of security threats to the country on its frontiers or to control internal situations in aid of civil power when called upon to do so. However, ISI, MI or any other Agency like IB have no role to play in the political affairs of the country such as formation or destabilization of government, or interfere in the holding of honest, free and fair elections by Election Commission of Pakistan. Involvement of the officers/members of secret agencies i.e. ISI, MI, IB, etc. in unlawful activities, individually or collectively calls for strict action being, violative of oath of their offices, and if involved, they are liable to be dealt with under the Constitution and the Law.
(13) Late Ghulam Ishaq Khan, the then President of Pakistan, General (R) Aslam Baig and General (R) Asad Durrani acted in violation of the Constitution by facilitating a group of politicians and political parties, etc., to ensure their success against the rival candidates in the general election of 1990, for which they secured funds from Mr. Younas Habib. Their acts have brought a bad name to Pakistan and its Armed Forces as well as secret agencies in the eyes of the nation, therefore, notwithstanding that they may have retired from service, the Federal Government shall take necessary steps under the Constitution and Law against them.
(14) Similarly, legal proceedings shall be initiated against the politicians, who allegedly have received donations to spend on election campaigns in the general election of 1990, therefore, transparent investigation on the criminal side shall be initiated by the FIA against all of them and if sufficient evidence is collected, they shall be sent up to face the trial, according to law.
[bold by us for emphasis]
What happened afterwards is another sordid story. Revision petition (still pending), the Federal Investigation Agency (FIA) submitted report in April 2019 saying it “found no evidence”. The Supreme Court showing dissatisfaction, directed FIA to continue the investigation and that is the end of the story till today. No concrete action and selective accountability continues against those who courageously spoke the truth.
Once again the illustrious Justice Syed Mansoor Ali Shah gave the following remarks in revision petitions filed by Justice Qazi Faez Isa and others as reported in ‘Justice Isa Case: SC issues notices to federal government, The News, March 4, 202:
“The live coverage of court proceeding will not benefit me but the people of Pakistan. The live broadcast of court proceedings will expose some bad lawyers who do not come prepared. The live broadcast of the court proceedings will give the public access to the truth”
From 2009 to 2018, the Supreme Court invoked suo moto powers many times causing hysteria in a lot of circles and in the end nothing worthwhile was achieved except the disqualification of two elected prime ministers and other members and undoing international agreements that later elicited suits of damages against the state of Pakistan. There has been severe criticism from many quarters that judiciary has been transgressing its constitutionally-defined limits.
Military and civilian governments in our history have been marred by anti-people and autocratic attitudes. Asghar Khan’s case is a classic example of unholy alliance of anti-democratic forces—military and civilian—to steal people’s mandate. This remains the main factor behind our failure to establish a true democratic polity.
The nation was jubilant when Supreme Court not only declared the National Reconciliation Ordinance (NRO) ultra vires and void ab initio in Dr Mobashir Hassan & Others v Federation of Pakistan and Others, PLD 2010 SC 1 but also asked the government to revive matters of alleged funds stashed in Switzerland. Alas, since then the Court could not get this part of the order enforced. Refusal to implement the order resulted in the indictment and punishment of then Premier for contempt. In the Panama case as well the judgement was only confined to disqualification of three-times elected Prime Minister. People ask whatever happened to retrieval of looted money in his and all other cases—a question that baffles the minds of ordinary citizens as highlighted in Amnesties & tax losses, Surkhyian, November 13, 2020 and Legislators, declarations & accountability, Surkhyian, January 20, 2020, The General’s ‘general law’ v ‘special law’, Business Recorder, December 18, 2020, Constitution and tax codes—I, Business Recorder, January 29, 2020 and Constitution and tax codes—II, Business Recorder, January 30, 2020 and many others.
Through Money Bill, asset-whitening schemes with complete confidentiality were given by Pakistan Muslim League-Nawaz (PML (N) in 2018 in violation of Article 19A of the Constitution and the same was done by PTI by giving one in 2019 twice and then extended the last one on December 31, 2020. The following issue was highlighted about the amnesties given in 2018 and 2019 and passed as Money Bill:
“How could ill-gotten money created through corruption become kosher after 10 years in the hands of public officeholders and employees of State? It is worth-mentioning that the National Accountability Ordinance, 1999 applicable from January 1, 1985 was ignored by PMLN under Foreign Assets (Declaration and Repatriation) Act, 2018 and Voluntary Declaration of Domestic Assets Act, 2018 and then by the PTI Government first through Assets Declaration Ordinance, 2019 and then by Assets Declaration Act, 2019. However, nobody took note of it. If the National Accountability Ordinance, 1999 was draconian and reflective of legacy of a dictator, meant for political revenge, why did not Pakistan Peoples Party and PMLN repeal it during the Decade of Democracy [2008-18]? What prevented them to bring a new law and also to include generals and judges—in fact all powerful segments in its ambit liable to be probed by an autonomous agency answerable directly to Parliament”.
The menaces of corruption, horse-trading, and various financial crimes have been persisting unabated in Pakistan for decades and the PTI Government since 2018 has also failed to uproot them. The issue is not mere acceptance of existence of these widespread corrupt mechanisms, including misapplication of public funds, change of loyalties in violation of law by holders of representative offices for political and personal gains, self-aggrandisement by the Government functionaries, local and statutory authorities functioning under political masters, as done by Premier, Imran Khan, but how to end these menaces?
In the wake of Senate election on March 3, 2021 and allegations of corruption by rival politicians against each other, the voters are further disillusioned with the conduct of party leaders and elected representatives. They are stunned that the Prime Minister in his televised address on March 4, 2021 admitted: “Many PTI members were bought”. This statement during Senate elections and leakages of videos of 2018 and 2021 pertaining to horse-trading has discredited the entire system. After confession by the Premier of electoral corruption and evidence available, the culprits must face criminal proceedings. Mere expulsion of defiant or allegedly corrupt members from PTI by the Premier in 2018 has proved ineffective.
Perpetual violation of laws and committal of corrupt practices by some elected politicians defy all norms of democracy. These undesirable practices are not confined to any particular political party. In theory, Pakistan is a constitutional democracy, but in practice it is an embodiment of kleptocracy. Favouritism, nepotism, corruption and using money or other tactics to secure change of political loyalties have been part of our political culture/governance under both military and civilian rules alike.
The agencies responsible to combat these menaces, National Accountability Bureau (NAB), provincial anti-corruption departments, Federal Board of Revenue, Federal Investigation Agency and Election Commission of Pakistan (ECP), have all failed to perform their duties. They have never bothered to establish a joint task force to counter financial crimes posing serious threat to our internal security and hampering economic growth.
In the presence of financial and intellectual corruption, the successful vote of confidence securing 178 votes on March 6, 2021 by the Premier and success of PTI-supported Chairman and Deputy Chairman of Senate held on March 12, 2021, have become meaningless.
On March 23, 2021 [81st Pakistan Day], ceremonially, there is reiteration of resolve for supremacy of constitution and strict adherence to rule of law but nobody is serious to recover the looted wealth of nation and lost taxes. If the state fails to take concrete steps for recovering the funds and spend it for the welfare of common people who are suffering from hunger, unemployment, malnutrition, and deprived of health and educational facilities (situation aggravated after Covid-19 endemic due to frequent complete and partial lockdowns), then what is the meaning of celebrating March 23 as yet another annual ritual. It is time that we revive the resolve of founders of Pakistan for a true democratic rule by punishing the plunderers of national wealth and violators of Article 6 of the Constitution and all persons, not politicians alone, who have soiled their hands in any kind of financial scams.
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Ms. Huzaima Bukhari, Advocate High Court and Visiting Faculty at Lahore University of Management Sciences (LUMS), is author of numerous books and articles on Pakistani tax laws. She is editor of Taxation and partner of Huzaima & Ikram, a leading law firm of Pakistan. From 1984 to 2003, she was associated with Civil Services of Pakistan. Since 1989, she has been teaching tax laws at various institutions including government-run training institutes in Lahore. She specialises in the areas of international tax laws, corporate and commercial laws. She is review editor for many publications of Amsterdam-based International Bureau of Fiscal Documentation (IBFD) and contributes regularly to their journals. She has to her credit over 1500 articles on issues of public importance, printed in various journals, magazines and newspapers at home and abroad.
She has coauthored with Dr. Ikramul Haq many books that include Tax Reforms in Pakistan: Historic & Critical Review, Towards Flat, Low-rate, Broad and Predictable Taxes (revised/enlarged edition of December 2020), Pakistan: Enigma of Taxation, Towards Flat, Low-rate, Broad and Predictable Taxes, Law & Practice of Income Tax, Law , Practice of Sales Tax, Law and Practice of Corporate Law, Law & Practice of Federal Excise, Law & Practice of Sales Tax on Services, Federal Tax Laws of Pakistan, Provincial Tax Laws, Practical Handbook of Income Tax, Tax Laws of Pakistan, Principles of Income Tax with Glossary andMaster Tax Guide, Income Tax Digest 1886-2011 (with judicial analysis).
The recent publication, coauthored with Abdul Rauf Shakoori and Dr. Ikramul Haq, is Pakistan Tackling FATF: Challenges & Solutions
available at: https://www.amazon.com/dp/B08RXH8W46
She regularly writes columns for Pakistani newspapers and has contributed over 1500 articles on issues of public finance, taxation, economy and on various social issues in various journals, magazines and newspapers at home and abroad.
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Dr. Ikramul Haq, Advocate Supreme Court, specialises in constitutional, corporate and tax laws. He established Huzaima & Ikram in 1996 and is presently its chief partner as well as partner in Huzaima Ikram & Ijaz. He studied journalism, English literature and law. He is Chief Editor of Taxation andVisiting Faculty at Lahore University of Management Sciences (LUMS).
He has coauthored with Huzaima Bukhari many books that include Tax Reforms in Pakistan: Historic & Critical Review, Towards Flat, Low-rate, Broad and Predictable Taxes (revised & Expanded Edition, Pakistan: Enigma of Taxation, Towards Flat, Low-rate, Broad and Predictable Taxes (revised/enlarged edition of December 2020), Law & Practice of Income Tax, Law , Practice of Sales Tax, Law and Practice of Corporate Law, Law & Practice of Federal Excise, Law & Practice of Sales Tax on Services, Federal Tax Laws of Pakistan, Provincial Tax Laws, Practical Handbook of Income Tax, Tax Laws of Pakistan, Principles of Income Tax with Glossary andMaster Tax Guide, Income Tax Digest 1886-2011 (with judicial analysis).
The recent publication, coauthored with Abdul Rauf Shakoori and Huzaima Bukhari is Pakistan Tackling FATF: Challenges & Solutions
available at: https://www.amazon.com/dp/B08RXH8W46
He is author of Commentary on Avoidance of Double Taxation Agreements signed by Pakistan, Pakistan: From Hash to Heroin, its sequelPakistan: Drug-trap to Debt-trap and Practical Handbook of Income Tax. He regularly writes columns for many Pakistani newspapers and international journals and has contributed over 2500 articles on a variety of issues of public interest, printed in various journals, magazines and newspapers at home and abroad.
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Our joint and individual books and articles can be seen at:
http://petiwalabooks.com/huzaima-dr-ikram-ul-haq?orderby=6