Tax offenders and rule of law

Paying taxes is a constitutional obligation of all citizens and violation by anyone should be dealt with according to law without any fear or favour

Tax offenders and rule of law

All public power is a sacred trust, which is to be exercised fairly, justly, honestly and in accordance with law…--Supreme Court in Workers’ Party Pakistan & Others v Federation of Pakistan & Others [PLD 2012 Supreme Court 681]

People of Pakistan are becoming increasingly disillusioned with the conduct of their political leaders and elected representatives vis-à-vis discharging tax obligations, especially in the wake of publication of The Panama Papers: how the world’s rich and famous hide their money offshore [The Guardians, April 3, 2016]. Even though Pakistan, under tremendous pressure from outside world, passed Anti-Money Laundering Act, 2010, section 111(4) of Income Tax Ordinance, 2001 still gives a free hand to money launderers and tax evaders. No question would be asked even if they remit untaxed, ill gotten-funds from outside through banking channels!

In papers filed by the prime minister before Election Commission of Pakistan (ECP) in 2013 and in tax return submitted to the Federal Board of Revenue (FBR) for tax year 2011, he showed "gift" of Rs129,836,905 by way of remittance from his son. Taxmen are barred by law to raise any query about this gift. But question can be asked under Anti-Money Laundering Act, 2010 about the source of gift, whether it was from a bank account in offshore or onshore and whether it was declared in UK by the son, who was resident there.

The Center for Investigative Reporting in Pakistan (CIRP) in its reports, Taxation by Misrepresentation and Representation Without Taxation: CIRP’s Report Unmasked Tax Evasion In Parliament, exposed how income tax law was violated with impunity by elected representatives. Quoting CIRP, Sunday Telegraph on May 5, 2013 lamented that "President Asif Ali Zardari and Rehman Malik until mid-March when the government stepped down ahead of elections were among those politicians who did not file returns."

Public officeholders in Pakistan openly defy tax laws and get away with it. Section 5(m) of National Accountability Ordinance, 1999 includes in the definition of ‘public officeholders’ all existing, former and incumbent presidents, governors, prime ministers, chairmen and deputy chairmen Senate, speakers and deputy speakers, federal ministers, ministers of state, advisors, special assistants as well as political secretaries to the prime minister, parliamentary secretaries, members of parliament, and auditor generals. It also covers anybody who has been an officer or had been holding a post in the service of Pakistan or any service in connection with the affairs of the federation, or of a province, or of a local council or in the management of corporations, banks, financial institutions, firms, concerns, undertakings or any other institution or has been the chairman or vice chairman of a Zila [district] council, a municipal committee, metropolitan corporation, fall in the category of public officeholders.

The name and shame game in tax delinquency should not be confined to the members of parliaments alone. It must cover all, especially the powerful segments of society.

Tax system is one of the fundamental elements of constitutional democracy. If elected members do not discharge their tax obligations diligently, not only the entire system gets discredited, they also lose the moral right to represent the people. No taxation without representation is a cardinal principle of democracy -- Article 77 of our constitution says that no tax shall be levied for the purposes of the Federation except by or under the authority of the Act of Parliament.

The name and shame game in tax delinquency, however, should not be confined to the members of parliaments alone. It must cover all, especially the powerful segments of society. All persons in the service of Pakistan, holding public offices and elected should make public their wealth and expenditure statements filed under the respective laws governing them.

The issue of tax declarations of holders of public offices and high-ranking state functionaries should be tackled democratically. There should be all representative Parliamentary Standing Committee on Asset Disclosures & Investigation. The FBR should be obliged under law to convey to this committee all the declarations filed by persons holding public offices.

The committee should have powers to compare declarations filed under the Civil Servants Act, 1973, Army Act, 1952 and related rules, Representation of Peoples Act, 1976, the Senate (Election) Act, 1975, Rule 4 of the Political Parties Rules, 2002 with those filed under the Income Tax Law. In case of any discrepancies or complaint of suppression and concealment, the committee could ask the ECP, the FBR, the NAB, the FIA, MP, Military Court, as the case may be, to take action under the law.

Chief of the Army Staff on April 19, 2016, made it clear that: "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".

The process of accountability must start with scrutinising of declaration of assets, liabilities and taxes paid by politicians, high-ranking civil and military officials and judges. This is requirement of Article 19A of the Constitution 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."

First of all, as the head of Ministry of Finance and looking after the FBR, Ishaq Dar should tell the nation how assets worth billions were created abroad by his own sons. Nation wants him to refute with evidence charges levelled by political adversaries of investment in HDS Group in UAE. Citizens expect that soon he will enlighten them about the story, ‘The truth about Rs3.48 billion Sharif’s loan default’, The News, April 9, 2013. The prime minister should also explain the sources of billions invested by his siblings abroad. In fact, all elected representatives should make declaration of all assets held by them abroad in their own names or in the name of any family members. They should also divulge with evidence the sources from which these assets were created.

In a recent case, Muhammad Ahmad Chatta v Iftikhar Ahmad Cheema and others [Civil Appeal No.1020 OF 2014], the Supreme Court, while hearing an appeal under section 67(3) of the Representation of the People Act, 1976 [the Act], disqualified the elected member for non-disclosure of assets of spouse holding as under:

"From the perusal of record, it is established that while submitting the nomination papers, the respondent has not submitted statement regarding assets of his spouse as required under section 12 of the Act, 1976. The learned Election Tribunal, without taking into consideration this aspect of the case and while holding that respondent has not disclosed assets owned by his spouse and the account maintained by him, dismissed the election petition merely on the ground that mens rea is not proved and further the government exchequer has not suffered any loss on account of non-disclosure of these material facts. This finding of the Tribunal is against the spirit of law and as such calls for interference."

The exercise of constitutional right to access information in all matters of public importance is necessary for transparency, accountability and good governance -- essential elements of democratic dispensation. Democracy and rule of law go hand in hand and without transparency and accountability both remain mere clichés.

Paying taxes is a constitutional obligation of all citizens -- violation by anyone should be dealt with according to law without any fear or favour for any person, notwithstanding his position in society. If lawmakers commit any lapse in respect of their tax obligations, they must be punished more rigorously than others, as they are supposed to be custodians of public faith and money.