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Huzaima Bukhari & Dr. Ikramul Haq
In the wake of Panama Papers: Politicians, Criminal & Rogue Industry That Hide Their Cash, issued by International Consortium of Investigative Journalists (ICIJ), heated debatesstarted in ever country for disclosures of information relating to matters falling in the category of public importance. In Pakistan people are disillusioned, as usual, that nothing has happened and on the contrary the information of tax evaders and looters of national wealth was extended protection from public disclosure by the Government of Pakistan Tehreek-i-Insaf (PTI) through Assets Declaration Ordinance, 2019 promulgated through a Presidential Ordinance on May 14, 2019 and later passed unlawfully by the National Assembly as part of Money Bill [The Finance Act, 2019]. It was against Article 19A of the Constitution of Pakistan which says: “Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law”.
Earlier, the Government of Pakistan Muslim League (Nawaz) got passed Foreign Assets (Declaration and Repatriation) Act, 2018 and Voluntary Declaration of Domestic Assets Act, 2018 as part of Finance Act, 2018. All these laws, assuring complete confidentiality to tax evaders and plunderers of national wealth, could not be passed as Money Bill. These were passed by the National Assembly in utter violation of the Constitution and judgements of the Supreme Court, namely, Workers Welfare Funds m/o Human Resources Development, Islamabad through Secretary and others v East Pakistan Chrome Tannery (Pvt.) Ltd through its GM (Finance), Lahore etc. and others [(2016) 114 TAX 385 (S.C. Pak.)], Mir Muhammad Idris v FOP PLD 2011 SC 213 and Sindh High Court Bar v FOP PLD 2009 SC 789. Tragically, our civil society also did not bother to challenge these under Article 199 of the Constitution on the basis of above cases and invoking Article 189 of the Constitution.
The Supreme Court of Pakistan in Watan Party & Others v Federation of Pakistan & Other PLD 2012 Supreme Court 292 as under:
“Article 19A has thus, enabled every citizen to become independent of power centres which, heretofore, have been in the control of information on matters of public importance….. Article 19A is a grant of the Constitution and, therefore, cannot be altered or abridged by a law enacted by Parliament…It, therefore, will not for this Court to deny to the citizens their guaranteed fundamental right under Article 19A by limiting or trivializing the scope of such right through an elitist construction whereby information remains the preserve of those who exercise state power.”
The passing of Foreign Assets (Declaration and Repatriation) Act, 2018, Voluntary Declaration of Domestic Assets Act, 2018, promulgation of Assets Declaration Ordinance, 2019 and later enacted as Assets Declaration Ordinance, 2019 as part of Finance Act, 2019 were patently unconstitutional—PTI once against such laws is now emerging as its ardent defender!
It confirms that the beneficiaries of stolen and untaxed wealth are untouchable in Pakistan and now further protection is assured to them in the name of investment and fear from National Accountability Bureau (NAB) as National Accountability Ordinance, 1999 covered even ‘private persons’ if involved in corruption” as defined in section 5 of the said law. The Presidential Ordinance, National Accountability Bureau (NAB) Ordinance 2019, has already amended the law to protect tax evaders and looters of national wealth. It is reputedly challenged in Supreme Court.
The important question is how Federal Board of Revenue (FBR) will proceed against those taken out of jurisdiction of NAB as majority has already availed Foreign Assets (Declaration and Repatriation) Act, 2018, Voluntary Declaration of Domestic Assets Act, 2018, Assets Declaration Ordinance, 2019 and Declaration Ordinance, 2019, and earned complete confidentiality? Against the men in power and parliamentarians, who could not avail the above amnesties, FBR in the past failed to show willingness to proceed against them even after knowing that vast majority of them declared meagre incomes that never matched their standard of living. In a Press report, ‘Parliamentarians, Imran, tax expert raises questions about outcome of audit’ [Business Recorder, October 27, 2018] a vital question was raised: what was the outcome of cases of parliamentarians selected for audit through random balloting last year. What was the result of the audit of parliamentarians including Prime Minister Imran Khan whose case was selected for audit in the past?” It may be recalled that many parliamentarians were selected for audit for Tax Year 2015-16 through computer ballot using parametric selection mechanism but FBR failed to take appropriate action or at least never divulged the details of how much extra tax was collected. FBR is totally politicised and muzzled by men with money power and having track record of inefficiency and corruption as well as accommodating the government of the day and victimizing its political adversaries and is totally incapable of doing accountability the Prime Minister has been claiming would be done. It is fully justifiable to take powers of tax probe from NAB, unless public officeholders are involved, but it is equally important to make FBR and others tax agencies free from all outside influences, especially political subservience.
It is time that Supreme Court of Pakistan take suo muto action and order access and public disclosure of tax/asset/expenditure declarations of public officeholders, judges, high-level civil military officials and businessmen who availed huge loans from banks, for transparency and as fulfillment of inalienable right guaranteed by the Constitution to citizens under Article 19A. As held by the Supreme Court, this right cannot be altered or abridged by a law enacted even by Parliament— Watan Party & Others v Federation of Pakistan & Other PLD 2012 Supreme Court 292. The Apex Court even went a step ahead and held: It, therefore, will not for this Court to deny to the citizens their guaranteed fundamental right under Article 19A by limiting or trivializing the scope of such right through an elitist construction whereby information remains the preserve of those who exercise state power.”
In the light of above, no person should hide behind the laws relating to “confidentiality” and “secrecy.” The FBR, Election Commission of Pakistan (EEC), State Bank of Pakistan (SBP), National Accountability Bureau (NAB), Anti-Narcotics Force (ANF) and Federal Investigation Agency (FIA) should have access to tax record for any inquiry conducted by them under their respective laws. Presently, there exists confusion and misconception in certain circles that Income Tax Ordinance, 2001 guarantees “complete confidentiality” for tax declarations as well as documents filed, and that tax officials cannot divulge the same in any circumstances. The correct position of law emerges from the fact that FBR in the past even published tax declarations of all taxpayers with the approval of the federal government.
Section 216(1) of the Income Tax Ordinance, 2001 says that all particulars contained in any statement made, return furnished, or accounts or documents produced or any evidence given, or affidavit or deposition made, in the course of any proceedings under this law or any record of any assessment proceedings or any proceedings related to recovery of a demand shall be confidential and no public servant save as provided in this Ordinance may disclose any such particulars.
There are many exceptions to this rule as contained in sub-sections (3), (4), (5), (6A), (6B) and (6C) of section 216. For example, it is clearly provided in sub-section (5) that nothing contained in sub-section (1) of section 216 shall prevent the Board from publishing, with the prior approval of the Federal Government, any particulars filed by any taxpayer and sub-section (6) in categorical terms states: “Nothing contained in sub-section (1) shall prevent the Federal Government from publishing particulars and the amount of tax paid by a holder of a public office as defined in the National Accountability Bureau Ordinance, 1999 (XVIII of 1999).” Sub-section (6C) says: “Nothing contained in sub-section (1) shall prevent the Board from publishing the names of offshore tax enablers, in the print and electronic media who have enabled offshore tax evasion”.
The FBR till today has not divulged the names of “offshore tax enablers, in the print and electronic media, who have enabled offshore tax evasion”, rather it is denying right to information in respect of recent deal/settlement signed between National Crime Agency (NCA) of United Kingdom and a Pakistani accused of offshore tax evasion of £190 million. Under section 216(6C) of the Income Tax Ordinance, 2001 and in terms of Article 19A, it is proactive duty of FBR to publish complete information of this settlement which the Government of PTI wants to keep secret!!
It is understandable as about 70% of Pakistani legislators—members of Senate and National Assembly—were exposed for not complying with section 116(2) of the Income Tax Ordinance, 2001 by not filing tax returns, wealth statement and personal expenses having taxable income of Rs. 500,000 in tax year 2011, they accused FBR for “illegally” (sic) disclosing data. On the contrary, FBR was proven guilty for not taking any action against these defaulters. All tax directories published so far show laughable quantum of incomes showed by majority of legislators vis-à-vis their assets and standard of living!
It is, however, worth noting that violation of tax laws is not confined to parliamentarians. The ashrafiya (elites)—militro-civil bureaucracy, landed aristocracy, politicians, religious and spiritual leaders (ulema and pirs), loan beneficiaries, unscrupulous business tycoons—flout laws of the land with impunity and take pride in it. Since assets and tax declarations of powerful militro-civil-judicial hierarchy are not available, the citizens cannot know how much state land was given to them on throw-away prices and whether they paid tax on differential of market value as envisaged in section 13(11) of the Income Tax Ordinance, 2001 for this and other similar favours at taxpayers’ expense. This is the stark reality of today’s Pakistan—legislators make a mockery of laws enacted by them, and the mighty militro-civil-judicial complex takes cover under special laws to avoid public disclosure of asset and tax declarations—availing offshore facility for them is itself a proof of it!
There is a formidable resistance from all politicians for establishment of an independent accountability authority in Pakistan as they know that such a body would expose their corruption and end their control over the State. The way forward is that political parties should be forced to keep proper accounts, get them audited by reputed firms and file tax returns. Once this is made mandatory under the law, they would have no option but to take into their folds only those people who honestly discharge their tax obligations. The process of filtration within the parties is a necessary step towards a true democratic culture. Election Commission should concentrate on this aspect of the matter to fulfill its constitutional liability under Article 218(3) and political parties must ensure in-house accountability and through an independent accountability agency that is under direct control of judiciary and not executive. Its members and chairman should be appointed through public hearing in a joint House Committee for Accountability for which, proper legislations should be initiated without any further loss of time.
Judicious and meaningful exercise of fundamental right guaranteed under Article 19A can make all the four pillars of the State—Legislation, Judiciary, Executive and Media—accountable to the public at large. Right to information under the Right of Information legislation of federal and provincial governments in all matters of public importance, access to official record of FBR and other government departments (which is not secret) and free availability of what is owned by privileged classes must be assured. It will certainly help improve governance, democratic dispensation, transparency and rule of law.
The exercise of constitutional right of access to information in all matters of public importance is necessary for transparency, accountability and good governance—essential elements of democratic dispensation. At the heart of Article 19A is ensuring accountability of all. Logically, the right to information must start from those who judge, adjudge and legislate. It is high time that all the laws relating to secrecy of assets/income/expenditures of mighty segments of society are withdrawn and their affairs be made public. It will be the first right step towards the creditable process of accountability in Pakistan.
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The writers, lawyers and authors, are Adjunct Faculty at Lahore University of Management Sciences (LUMS).