The saying goes, ‘All good things in life are either immoral, illegal or fattening’. This can very well apply to the situation of a spectacular party of powerful government elites with regards to a case relating to the 'toshakhana.'
At the time of writing, there is an arrest warrant out for a former Prime Minister on the basis of accusations pertaining to gifts that lie in the Toshakhana and by the time this article is published, he very well may have been arrested and presented before a court of law.
The Lahore High Court has also been hearing a case pertaining to Toshakhana and recently ordered the government to make the list of beneficiaries of state gifts public.
After much resistance, the cabinet approved a list (or at least a partial list) of beneficiaries last week and since then all hell has broken loose on social media.
Many have jumped into the fray arguing either in favor of our leaders - politicians, senior bureaucrats, judges, generals, and other senior officials - receiving and retaining gifts by foreign governments with the payment of a token money.
At least one former Prime Minister has gone on in public defending his decision of taking such gifts and put forth an argument that these gifts are the property of the individual to whom they are given, and not that of the state.
One also came across very senior and reputable lawyers arguing that their client(s) had done 'nothing illegal' in purchasing these gifts against token payment to the Toshakhana. To them, the law allows it and their clients have only exercised their right under the law.
With a range of highly politically polarised and emotionally charged narratives, it is difficult for ordinary citizens to decide what is right and wrong about the now infamous 'Toshakhana Rules.'
So, what do these rules allow? Here is what appears in alongside the current disclosures:
The monetary limits upto which the gifts can be retained by the recipient are as follows: -
(i) Gifts upto a value of Rs.10,000/- (Rupees ten thousand only) may be retained (free of cost) by the recipient.
(ii) Gifts valued above Rs.10,000/- may be allowed to be retained by the recipient on payment of 15% of the value exceeding basic exemption of Rs.10,000/- (increased to 20% in 2011 and 50% in 2018)
(iii) Gifts valued at Rs.400,000/- or more shall not be retained by the recipient, except the President and the Head of the Government. However, the recipient of gift comprising distinct articles but gifted in a single transaction having collective value of Rs.4 lac or more shall have an option to retain any article(s) upto the collective value of less than Rs.4 lac only subject to the condition that part of an article will not be allowed to be taken. This exemption shall however not be available in case of antiques and gifts of intrinsic historical value.
(iv) Different gift articles given by a single dignitary to a functionary at one occasion will be treated as a single gift for the purpose of valuation. (increased to 1 million in 2011).
(v) The maximum monetary limit to be allowed for retention of gifts in one calendar year for any functionary other than the President or the Prime Minister should not exceed Rupees one million. However, the gifts having value in excess of the limit of Rupees one million can be retained by the recipient on payment of 65% of the assessed value of the gifts. (increased to 2.5 in 2011).
Before we discuss whether - and how - Toshakhana rules are immoral and unethical, legal or illegal, good or bad, let us first discuss why such rules might exist in the first place. Under what circumstances would such rules actually make sense?
As we know, law often takes two forms - the letter of the law, and the spirit of the law - and often (though not always) these two do not conform with each other.
Sometimes, it is impossible to clearly specify the intent or the true spirit of law. And in some situations, it may even be desirable not to do so to allow for some wiggle-room within law as circumstances, societal norms, and expectations change over time.
When such cases arise, it is the job of the Courts to interpret the law in a manner that it can be practiced according to its spirit rather than simply its letter.
When social circumstances change dramatically, such that the intent or the spirit of the law becomes redundant, then it falls on the parliament to re-write the law to conform to the needs of the changing circumstances.
The Toshakhana rules are no different. There is the letter of the law and there is its spirit. And it is really important to assess the spirit of the law to understand why such a law may exist in the first place.
Any sane, rational, and fair-minded person would logically conclude that the only reason Toshakhana rules exist are to allow a leader who has received a gift from a foreign government (or functionary of such government) to claim such a gift if it has a personal sentimental value to him/her by paying a nominal amount of money.
It certainly cannot be the case that the rules exist to enable our leaders and public officials to enrich themselves by buying expensive gifts at a pittance.
An argument has already been made, and rightly so, that the gifts are made to our leaders as a reciprocal gesture to the gifts given by our government to other leaders and these gifts are bought from the taxpayers money (and not the personal funds of the leaders in question). Hence the received gifts must go back to the public purse and be spent for the benefit of the people.
I believe there is no moral or ethical justification for a leader to own or buy Toshakhana gifts at a fraction of throwaway prices. This is applicable even more in the case for expensive gifts as this violates so many other elements of fairness, good governance, conflict of interest and probity.
Not only does it deprive the taxpayers of their due right and leads to corruption but it also may call into question whether our leaders are conducting themselves ethically and negotiating hard for our national interests or are beholden to foreign influences that come with expecting and receiving expensive gifts.
That's the primary set of arguments for Toshakhana rules being immoral and unethical to begin with. But what about legality?
Let's examine the question of legality (and illegality) with a couple of scenarios.
First, a leader buys a gift from the Toshakana during its prescribed period in which it can be bought by paying an assessed value that is significantly lower than the real market value of that gift at that time. A significant number of the 400+ pages of Toshakhana disclosures probably fall in this category.
Although it is the job of the Toshakhana staff to have the gift assessed, it is inconceivable that a significantly lower valuation happens without the knowledge of the leader in question.
A Mercedes Benz bought by Nawaz Sharif at a paltry price of PKR 0.6 million clearly falls in this category and this behaviour must be declared illegal and corrupt as it enriches the leader and causes loss to the national exchequer and thus the taxpayer, as a result of a collusion.
Second, the situation is as such where a leader first secures the gift from the Toshakhana, sells it on the market, and then pays Toshakhana 10% or even less of the proceeds from the sale. There is clearly a procedural illegality here but it is not difficult to see how this kind of a circular transaction may be completely wrong.
This would be like a leader taking money away from the public purse, buying a piece of property from that money, selling that property at a higher price, and then putting that money back into the account.
If such behaviour is allowed, it opens an opportunity for unlimited corruption even if, in the end-state, the two transactions seem to lead to similar outcomes.
Under normal circumstances it would be easy to detect this behaviour since one could just record the date/time of money leaving and money returning back into one's account but not if this is done expertly.
Clearly, fake handmade receipts and cash transactions are designed to ensure that this can't be conclusively proven through a money trail.
Imran Khan is alleged to have committed both of these illegalities with several of his Toshakhana exploits. On top of that, he was disqualified by ECP for not declaring the proceeds of the sale of such gifts that resulted in significant increase in that year's income resulting in a face declaration.
Both these scenarios are clearly illegal thus leaving only one possible scenario - 'the sentimental value of the gift' - as the legal and to a lesser extent 'moral' one.
Should our leaders be allowed to keep gifts of sentimental value, for example a model of the Holy Ka'aba or a pen given by the Custodian of the Two Holy Mosques?
Probity demands that even such gifts should not be exchanged at nominal values so as to create the possibility of 'khayanat' in what is gifted to the state. Perhaps, a gift of sentimental value should be acquired from Toshakaha by paying 150% of assessed value and/or competing in an open auction?
What about all the gifts acquired at 10% or 20% of the declared value thus far? It is true that where the gift's value was properly assessed and proper procedure followed, nothing illegal may have happened.
But it is also important that the law comes down hard on those who have violated the letter of the law or bought gifts at artificially low assessed values over the years.
If there was one easy to find evidence which could be the 'silver bullet' of the lack of truthfulness and honesty - sadiq and ameen characteristics - of our leaders, where else could one hope to find it but in the disclosures of Toshakhana exploits?
At the time of writing, there is an arrest warrant out for a former Prime Minister on the basis of accusations pertaining to gifts that lie in the Toshakhana and by the time this article is published, he very well may have been arrested and presented before a court of law.
The Lahore High Court has also been hearing a case pertaining to Toshakhana and recently ordered the government to make the list of beneficiaries of state gifts public.
After much resistance, the cabinet approved a list (or at least a partial list) of beneficiaries last week and since then all hell has broken loose on social media.
Many have jumped into the fray arguing either in favor of our leaders - politicians, senior bureaucrats, judges, generals, and other senior officials - receiving and retaining gifts by foreign governments with the payment of a token money.
At least one former Prime Minister has gone on in public defending his decision of taking such gifts and put forth an argument that these gifts are the property of the individual to whom they are given, and not that of the state.
One also came across very senior and reputable lawyers arguing that their client(s) had done 'nothing illegal' in purchasing these gifts against token payment to the Toshakhana. To them, the law allows it and their clients have only exercised their right under the law.
With a range of highly politically polarised and emotionally charged narratives, it is difficult for ordinary citizens to decide what is right and wrong about the now infamous 'Toshakhana Rules.'
So, what do these rules allow? Here is what appears in alongside the current disclosures:
The monetary limits upto which the gifts can be retained by the recipient are as follows: -
(i) Gifts upto a value of Rs.10,000/- (Rupees ten thousand only) may be retained (free of cost) by the recipient.
(ii) Gifts valued above Rs.10,000/- may be allowed to be retained by the recipient on payment of 15% of the value exceeding basic exemption of Rs.10,000/- (increased to 20% in 2011 and 50% in 2018)
(iii) Gifts valued at Rs.400,000/- or more shall not be retained by the recipient, except the President and the Head of the Government. However, the recipient of gift comprising distinct articles but gifted in a single transaction having collective value of Rs.4 lac or more shall have an option to retain any article(s) upto the collective value of less than Rs.4 lac only subject to the condition that part of an article will not be allowed to be taken. This exemption shall however not be available in case of antiques and gifts of intrinsic historical value.
(iv) Different gift articles given by a single dignitary to a functionary at one occasion will be treated as a single gift for the purpose of valuation. (increased to 1 million in 2011).
(v) The maximum monetary limit to be allowed for retention of gifts in one calendar year for any functionary other than the President or the Prime Minister should not exceed Rupees one million. However, the gifts having value in excess of the limit of Rupees one million can be retained by the recipient on payment of 65% of the assessed value of the gifts. (increased to 2.5 in 2011).
Before we discuss whether - and how - Toshakhana rules are immoral and unethical, legal or illegal, good or bad, let us first discuss why such rules might exist in the first place. Under what circumstances would such rules actually make sense?
As we know, law often takes two forms - the letter of the law, and the spirit of the law - and often (though not always) these two do not conform with each other.
Sometimes, it is impossible to clearly specify the intent or the true spirit of law. And in some situations, it may even be desirable not to do so to allow for some wiggle-room within law as circumstances, societal norms, and expectations change over time.
When such cases arise, it is the job of the Courts to interpret the law in a manner that it can be practiced according to its spirit rather than simply its letter.
When social circumstances change dramatically, such that the intent or the spirit of the law becomes redundant, then it falls on the parliament to re-write the law to conform to the needs of the changing circumstances.
The Toshakhana rules are no different. There is the letter of the law and there is its spirit. And it is really important to assess the spirit of the law to understand why such a law may exist in the first place.
Any sane, rational, and fair-minded person would logically conclude that the only reason Toshakhana rules exist are to allow a leader who has received a gift from a foreign government (or functionary of such government) to claim such a gift if it has a personal sentimental value to him/her by paying a nominal amount of money.
It certainly cannot be the case that the rules exist to enable our leaders and public officials to enrich themselves by buying expensive gifts at a pittance.
An argument has already been made, and rightly so, that the gifts are made to our leaders as a reciprocal gesture to the gifts given by our government to other leaders and these gifts are bought from the taxpayers money (and not the personal funds of the leaders in question). Hence the received gifts must go back to the public purse and be spent for the benefit of the people.
I believe there is no moral or ethical justification for a leader to own or buy Toshakhana gifts at a fraction of throwaway prices. This is applicable even more in the case for expensive gifts as this violates so many other elements of fairness, good governance, conflict of interest and probity.
Not only does it deprive the taxpayers of their due right and leads to corruption but it also may call into question whether our leaders are conducting themselves ethically and negotiating hard for our national interests or are beholden to foreign influences that come with expecting and receiving expensive gifts.
That's the primary set of arguments for Toshakhana rules being immoral and unethical to begin with. But what about legality?
Let's examine the question of legality (and illegality) with a couple of scenarios.
First, a leader buys a gift from the Toshakana during its prescribed period in which it can be bought by paying an assessed value that is significantly lower than the real market value of that gift at that time. A significant number of the 400+ pages of Toshakhana disclosures probably fall in this category.
Although it is the job of the Toshakhana staff to have the gift assessed, it is inconceivable that a significantly lower valuation happens without the knowledge of the leader in question.
A Mercedes Benz bought by Nawaz Sharif at a paltry price of PKR 0.6 million clearly falls in this category and this behaviour must be declared illegal and corrupt as it enriches the leader and causes loss to the national exchequer and thus the taxpayer, as a result of a collusion.
Second, the situation is as such where a leader first secures the gift from the Toshakhana, sells it on the market, and then pays Toshakhana 10% or even less of the proceeds from the sale. There is clearly a procedural illegality here but it is not difficult to see how this kind of a circular transaction may be completely wrong.
This would be like a leader taking money away from the public purse, buying a piece of property from that money, selling that property at a higher price, and then putting that money back into the account.
If such behaviour is allowed, it opens an opportunity for unlimited corruption even if, in the end-state, the two transactions seem to lead to similar outcomes.
Under normal circumstances it would be easy to detect this behaviour since one could just record the date/time of money leaving and money returning back into one's account but not if this is done expertly.
Clearly, fake handmade receipts and cash transactions are designed to ensure that this can't be conclusively proven through a money trail.
Imran Khan is alleged to have committed both of these illegalities with several of his Toshakhana exploits. On top of that, he was disqualified by ECP for not declaring the proceeds of the sale of such gifts that resulted in significant increase in that year's income resulting in a face declaration.
Both these scenarios are clearly illegal thus leaving only one possible scenario - 'the sentimental value of the gift' - as the legal and to a lesser extent 'moral' one.
Should our leaders be allowed to keep gifts of sentimental value, for example a model of the Holy Ka'aba or a pen given by the Custodian of the Two Holy Mosques?
Probity demands that even such gifts should not be exchanged at nominal values so as to create the possibility of 'khayanat' in what is gifted to the state. Perhaps, a gift of sentimental value should be acquired from Toshakaha by paying 150% of assessed value and/or competing in an open auction?
What about all the gifts acquired at 10% or 20% of the declared value thus far? It is true that where the gift's value was properly assessed and proper procedure followed, nothing illegal may have happened.
But it is also important that the law comes down hard on those who have violated the letter of the law or bought gifts at artificially low assessed values over the years.
If there was one easy to find evidence which could be the 'silver bullet' of the lack of truthfulness and honesty - sadiq and ameen characteristics - of our leaders, where else could one hope to find it but in the disclosures of Toshakhana exploits?