ISLAMABAD - The Supreme Court in its detailed judgment on disqualification case of Pakistan Muslim League-Nawaz Leader Khwaja Asif observed that a person cannot be disqualified for life from holding public office on mere omission or non-disclosure.

The top court observed that omitting an asset cannot be labelled as dishonesty by invoking Article 62(1)(f) unless some wrongdoing in acquisition of asset was established in ‘appropriate judicial proceedings’, adding all nondisclosures of assets could not be looked at with the same eye.

“In our view attributing dishonesty to every omission to disclose an asset and disqualify a member for life could never have been the intention of the parliament while incorporating Article 62 (1) (f) in the Constitution,” the top court observed also adding, “no set formula can be fixed with regard to every omission to list an asset in the nomination paper and make a declaration of dishonesty and impose the penalty of lifetime disqualification.”

On April 26 this year, the Islamabad High Court (IHC) had disqualified PML-N leader and former Foreign Minister Khwaja Asif for life on non-disclosure of his assets in nomination papers. 

But in June, the top court’s three-judge SC bench headed by Justice Umar Ata Bandial had set aside IHC judgment.

In a detailed judgment comprising 22-pages, the author judge Justice Faisal Arab, member of the three-judge bench of top court, observed that ruling Pakistan Tehreek-e-Insaf (PTI) Usman Dar had absolutely failed to point out any decision which PML-N’s Asif had taken in discharge of his official duties that was likely to result in any financial or other material benefits for himself or his family or friends or any decision he took that had influenced him in the performance of his official duties.

“Thus no case of conflict of interest is made out,” the judgment held.

It further added that there was absolutely no allegation levelled against Asif that he received some lucrative opportunity in exchange for conferring benefits or sharing confidential information thereby abusing his public office. 

“In the present case neither a case of conflict of interest is made out nor has any wrongdoing associated with any asset belonging to the petitioner has been established in order to warrant interference in proceedings in the nature of quo warranto,” it said.

The judgment further observed that the election laws were designed to facilitate the general public to know what assets the contesting candidates owned and what liabilities they owed.

“The whole purpose behind seeking details of assets and liabilities under the election laws is to discourage persons from contesting elections for a seat in the Parliament or a Provincial Assembly who have concealed assets acquired through some wrongdoing.”

“Simultaneously it also aims at those members as well who hitherto may have held untainted record, be discouraged from indulging in corruption and financial wrongdoings after entering upon their office.”

It further observed that there were many conceivable instances where an omission to declare an asset on the face of it could not be regarded as dishonest concealment.

“For example, where an inherited property is not declared on account of mistake of fact or an asset acquired from a legitimate source of income is not listed in the nomination paper. Suchlike omissions at best could be categorized as bad judgment or negligence but certainly not dishonesty,” the top court further held. 

The judgment further stated that unsatisfactory explanation of assets and not proportional to the elected member’s known source would give rise to the presumption that unlawful means may have been applied with regard to such an asset.

“It is the credibility of the explanation that would be the determining factor as to whether nondisclosure of an asset carries with it the element of dishonesty or not.”

“The test of honesty with regard to non-disclosure of assets and liabilities is to be applied in that context only and certainly not in a case where a clean asset has not been declared on account of bad judgment or inadvertent omission.”

The top court further observed that making differentiations and distinctions were the tools in judicial proceedings in the determination of the penalties and punishments, therefore, the notion of proportionality and making distinctions could not be lost sight of while considering an omission to declare an asset.

The top court observed that no cut off period could be fixed or legal bar could be imposed to seek a declaration of dishonesty with regard to such an asset, which stood in elected member’s name or in the name of his spouse or dependent children that remained concealed from the records of the Election Commission.

The judgment also clarified that declaration of dishonesty could not be sought from the Returning Officer at the time of raising objections to a nomination paper.

“His (Returning Officer) scope of work is only to scrutinise the nomination papers in a summary manner within two to three days and at the most reject a nomination for non-compliance with the requirement of making requisite declarations but not to pass a judicial verdict on the issue of honesty of a contesting candidate in terms of Article 62 (1) (f) of the Constitution,” it said.

It further observed that Returning Officer could only reject a nomination paper without attributing any sort of dishonesty to the contesting candidate upon finding a nomination paper to be noncompliant with the election law.

“It is only when a contesting candidate has already been declared disqualified under Article 62 (1) (f) of the Constitution by a competent court of law that the Returning Officer can reject his nomination paper straight away on that basis.”

“Hence where an undeclared asset that had remained concealed from the records of the Election Commission comes to light and some dishonest act is associated with such an asset then the court of competent jurisdiction would scrutinize the issue of disqualification within the ambit of Article 62 (1) (f) of the Constitution.”

“If the outcome of the scrutiny is that a declaration of dishonesty is to be made then the court would make such a declaration or it may in the first instance choose to put the investigative machinery of the state into motion,” it added.

Based on the material coming on the record, the judgment stated, the test of honesty would be applied and in case the elected member is found dishonest he would be disqualified for life.

“It is highly inappropriate for a parliamentarian or member of a provincial assembly, who holds a position in the cabinet, to take a fulltime job in a foreign country where in terms of the written contract he is committed to work six days a week, however at the same time it seems highly improbable that a person holding such a position would actually be rendering his services as a fulltime employee elsewhere,” it added.

“Had it been true, it would have certainly become headline news in this day and age where such kind of information does not remain hidden from the media for long,” it added.