ISLAMABAD: The Supreme Court bench hearing the Panamagate case observed on Tuesday that the immunity available to the prime minister or the members of parliament was not absolute and that obedience of the law and the Constitution was an inviolable duty of every citizen.

“Committing a crime but still claiming parliamentary privilege is not covered in the immunity available to government functionaries in the performance of their duties,” observed Justice Asif Saeed Khosa, who heads the five-judge bench that has taken up a number of petitions seeking the disqualification of Prime Minister Nawaz Sharif over his family’s undeclared investments in offshore companies.

“You cannot say that there is an island called the floor of the house where you enjoy all kinds of immunity,” observed Justice Khosa, pointing towards senior counsel Makhdoom Ali Khan, who represents the prime minister.

But the PM’s counsel made it clear before the court that his client was not claiming immunity under Article 248 of the Constitution, which protects the president and the prime minister from being questioned in any court of law over the performance of their official functions.

Sharif’s lawyer argues 14-year-old tax returns are ‘past and closed transaction’; Maryam claims she ceased to be PM’s dependant in 1992

Rather, he said, the prime minister was claiming the same freedom of speech that was conferred upon every member of parliament, provided in Article 66 of the Constitution. The prime minister was also a member of the National Assembly, the counsel emphasised.

Also read: ‘PM may have omitted details from NA speech’

When Makhdoom Ali Khan referred to a number of cases from different foreign jurisdictions, Justice Khosa said the counsel did not need to refer to cases from the world over since the court understood why parliamentarians required immunity.

But the judge also reminded the counsel that in his May 16, 2016, speech before parliament, the prime minister himself volunteered information about the family business, but nobody was prosecuting him for that.

All the court wanted to understand, the judge observed, was whether it could look upon the speech as supporting evidence to resolve the controversy over the acquisition of the London flats.

At the outset, Justice Khosa referred to a 2004 case from the Privy Council of New Zealand, where it was held that speeches made in parliament could be used as evidence, as well as another case from Britain, where it was adjudicated that parliamentary privilege never protected parliamentarians from corruption cases.

Mr Khan, however, argued that the former ruling was not given by the Privy Council, but a court of appeals, which was overturned by the Privy Council.

Citing a number of case laws, the counsel argued that a speech made in parliament could not be scrutinised by the courts and said the issue of privilege had been brought in because disqualification had been sought on the basis of a speech in the National Assembly.

The court, he argued, would have to lay down a law with deep care and attention because it would have far-reaching implications. Any law the court laid down would determine the meaning and scope of Article 66 and would define the right of speech of every elected representative in the federal or provincial legislatures, the counsel argued.

Referring to the allegation of tax evasion, the counsel highlighted that Imran Khan had made four allegations while seeking the disqualification of the prime minister: for not declaring the $9 million proceeds from the 1980 sale of Gulf Steel in the UAE in his wealth tax returns; for filing his wealth statements for the years 2011 and 2012 after the fact, which was an offence attracting penalty; over the Rs31,700,000 given to Hussain Nawaz and Rs19,459,440 given to Maryam Nawaz as gifts; and the gifts received by the prime minister from Hussain Nawaz that should have been treated as income.

The petitioner was seeking the disqualification of the prime minister and at the same time asking for directions for the Federal Board of Revenue (FBR) to scrutinise the prime minister’s returns.

If the court denied the prayer seeking directions to the FBR, then the prayer seeking disqualification could not be granted, he argued. Even if the plea for directions to the FBR was accepted, disqualification was still not possible.

He maintained that after the lapse of 14 years, no tax returns could be called into question, and that too on the basis of a repealed law, because it was a past and closed transaction, the counsel said.

If the court wanted to open the tax returns of the prime minister after 14 years, then the same should apply to all Pakistanis. “The prime minister should be assessed in accordance with the same law as the rest of the citizens. He doesn’t claim better treatment but he should be treated no worse,” the counsel argued.

“So you are saying it cannot be done,” was Justice Khosa’s pithy takeaway.

Maryam’s reply

Also on Tuesday, the prime minister’s daughter Maryam Nawaz submitted a reply, claiming that she had not been a dependant of her father ever since her marriage in Dec 1992.

Other documents submitted said that she paid Rs39.2 million in taxes during the last five years on non-agricultural and agricultural income.

She also furnished bank statements from the Standard Chartered and Habib Bank to prove she returned gifts worth Rs31,700,000 to her father through crossed cheques.

The petitioner (Imran Khan) never sought any determination that she be declared a dependant of her father, adding that this was not a matter that was even remotely of public importance or related to Mr Khan’s fundamental rights, the reply argued.

The self evident and mala fide purpose of the false and frivolous allegation that she was the dependant of her father was to try and disqualify the prime minister for not declaring her assets in his nomination form, the reply regretted.

The reply explained that there were five houses in Shamim Agri Farms, named after her grandmother Ms Shamim Akhtar and popularly known as the Raiwind Farms. Of a total of 384 kanals, 364 kanals of the farmland was owned by Ms Shamim Akhtar, who controls all common expenses, including electricity, maintenance, security, food, etc.

The occupants of the five houses are Ms Akhtar, Punjab Chief Minister Mian Shahbaz Sharif, the family of the late Abbas Sharif and Maryam Nawaz.

In the year 2011, the prime minister purchased for her 85 kanals and 19 marlas of agricultural land in Mauza Sultankey, Lahore, the reply said, adding that she paid her father back in 2012 through banking channels and that the land was reflected in her wealth statement for 2012.

Published in Dawn, January 18th, 2017