Sheer ignorance of law?

Ignorantia juris non excusat or ignorantia legis neminem excusat (Latin for “ignorance of the law does not excuse” or “ignorance of the law excuses no one”) is a legal principle holding that a person who is unaware of a law may not escape liability for violating that law merely because he or she was unaware of its content – 2001 PLD 228 Supreme Court.

When about 70 percent of Pakistani legislators – members of Senate and National Assembly – were caught of violating section 116(2) of the Income Tax Ordinance, 2001 requiring filing of wealth statement and detailed personal expenses with return by every resident person having taxable income of Rs 500,000 in tax year 2011, they pleaded ignorance of law! According to them, since their only source of income was salary and allowances received as parliamentarian – one wonders how they enjoy a lavish living with this meagre source alone – and tax was deducted at source, they thought there was no need of e-filing of tax returns along with wealth statements. We will have to modify the legal maxim for our legislators: “ignorance of law is no excuse, except for its framers”!

The Federal Board of Revenue (FBR) is equally guilty in the matter as it was the statutory responsibility of the concerned Commissioner(s) in such cases of non-compliance to issue notices under section 114(3) and 116(1) of the Income Tax Ordinance, 2001. As the matters relates to holders of public office (apparently living beyond means), it was also a congnizable offence for which investigations should have been made by Federal Investigation Agency (FIA) and National Accountability Bureau (NAB) under their respective 7laws. None of these institutions has taken any action till today. The entire episode is a sad reflection of the prevalent ugly state of affairs in Pakistan where the mighty sections of society give a damn to rule of law and state functionaries are hesitant to proceed against them for fear of repercussions or losing of favours – the key appointments are made on political considerations than on merit.

The issue of blatant violation of rule of law is not confined to our parliamentarians. The ashrafiya (elites) – comprising militro-civil-judicial bureaucracy, landed aristocracy, industrialist-cum-politicians, oligarchy of religious and spiritual leaders (ulema and pirs), media tycoons and their powerful anchors – flout law of the land with impunity and take pride in it – for them it is a show of powerfulness. The problem starts from to the top-when matter comes to spending by the highest judicial organ, it takes cover of special laws and shows defiance of summons issued by the Public Accounts Committee. The critics say if everything is according to law, why to hide behind technicalities. If some powerful men are involved, special commissions are constituted restraining the investigation agencies to perform their duties. They blow hot and cold in the same breath – when it is suitable they praise the same agencies for excellent work.

If assets and tax declarations of powerful militro-civil-judicial hierarchy are not made public, how the citizens will know how much state land was given to them on throwaway prices and whether they paid tax 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 – the legislators make mockery of laws enacted by them and the mighty militro-civil-judicial bureaucrats hide behind special laws!

Article 19A of the Constitution of Pakistan says that “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”. Explaining the scope and import of this fundamental right, added to the supreme law of the land through 18th amendment, honourable Justice Jawad S. Khawaja in his note in Watan party and others v Federation of Pakistan and others PLD 2012 Supreme Court 292 [commonly known as Memogate Scandal] held that “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 trivialising the scope of such right through an elitist construction whereby information remains the preserve of those who exercise state power”.

The exercise of constitutional right to 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 this constitutional provision is ensuring accountability of all. Logically, the right to information must start from those who judge, adjudge and legislate. While legitimate concerns have been expressed about blatant violations of tax laws by the parliamentarians, no effort is being made to demand the disclosure of tax and asset declarations of powerful militro-civil-judicial bureaucrats who have been beneficiaries of enormous state lands never paid tax on the same as required under section 13(11) of the Income Tax Ordinance, 2001 – see details in our article, The Perquisites, published in Business Recorder of October 17, 2012.

Under Article 19A, it is the constitutional obligation of the parliament to abolish all laws relating to secrecy and/or immunity and enact a comprehensive right to information legislation for compulsory disclosure of assets, liabilities and taxes paid by holders of public office, judges, generals and high ranking government officials – at present, such information cannot be obtained under Freedom of Information Ordinance 2002 whereas assets of politicians are notified in the Gazette of Pakistan by Election Commission of Pakistan. Why only parliamentarians? Why should not all the powerful persons representing four pillars of the State be covered? Parliament instead of fulfilling its constitutional responsibility under Article 19A is keen in passing yet another tax amnesty scheme under which after paying just 1 to 1.5 percent of evaded taxes, all kinds of protections will be available – even no inquiry by NAB or FIA! In the face of this shocking and shameful conduct of Parliament, how can it ever think of bringing powerful militro-civil-judicial bureaucracy accountable to the people who elect them?

The issue of asset disclosure by judges came in limelight in India when a Right to Information Application (RTI) was filed with the Supreme Court by an ordinary citizen, Subhash Agarwal. After much debate and legal battles, the government introduced a bill in Parliament providing for asset disclosure of judges, but with a protection clause that the same would not be accessible to the people and that judges would not be made liable for any action on the basis of their disclosure. This led to a commotion in parliament – the MPs rising above party lines, vehemently and collectively condemned this clause, forcing the government to pull out the bill.

In the wake of debate in Indian Parliament and country-wide public campaign, a number of High Court judges made their assets public, dissociating themselves from the Chief Justice of India’s stand that asset disclosure would lead to harassment of judges at the hands of disgruntled litigants. Eminent former judges and leading jurists joined the civil society – they openly demanded public declaration of assets by judges. The entire civil society and media, unanimously and vocally, opposed the stance of Indian Chief Justice. Succumbing to opposition – both from inside and outside – the Chief Justice ultimately yielded, announcing that asset declarations of the judges would be placed on official website. Soon thereafter, twenty-one judges of the Supreme Court, including Chief Justice of India K.G. Balakrishnan, declared their assets, giving details of movable and immovable property owned by them and their spouses.

Since our apex court has championed the cause of people’s right to information in PLD 2012 Supreme Court 292, it is a legitimate expectation of the citizens of Pakistan that as a first step, the honourable judges of Supreme Court and High Courts, like their counterparts in India, voluntarily make public their assets and tax declarations. It will be a great move inspiring others to follow. Needless to say that right to information is a fundamental enforceable right that cannot be denied and any contrary law in existence to Article 19A being repugnant to Constitution is void ab initio – the principle enunciated by Supreme Court in PLD 2012 Supreme Court 292.

The meaningful and effective exercise of 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 in all matters of public importance, access to official record and free availability of what is owned by privileged classes must be assured as it will help improve governance, transparency and rule of law. Paying of taxes is constitutional obligation under Article 5 and tax laws – any violation by anybody should be dealt with according to law without any fear or favour. But the question is: can it be done by those who flagrantly violate tax laws and keep of extending amnesties and immunities to the plunderers of national wealth and tax evaders?

(The writers, lawyers and partners of HUZAIMA & IKRAM (Taxand Pakistan: http://www.taxand.com/our_locations/pakistan), are Adjunct Faculty Members at Lahore University of Management Sciences (LUMS)