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Thursday March 28, 2024

Non-disclosure of assets can’t lead to disqualification: SC

By Sohail Khan
October 20, 2018

ISLAMABAD: The Supreme Court on Friday ruled that mere non-disclosure of account or unintended omission cannot lead to disqualification of a lawmaker under Article 62(1)(f) of the Constitution unless some wrongdoing associated with an undeclared asset is established.

The apex court announced detailed verdict in disqualification case of the PML-N leader Khawaja Asif. The 21-page detailed judgment, written by Justice Faisal Arab, held that as law does not envisage that every rejection of nomination paper on account of non-disclosure of an asset would lead to disqualification under Article 62(1)(f) of the Constitution, therefore, unless some wrongdoing associated with an undeclared asset is established, the outcome of the case would not culminate into disqualification for life.

On April 26, the Islamabad High Court (IHC) had disqualified Khawaja Asif by declaring that he was not qualified to contest the general elections of 2013 from National Assembly Constituency NA-110, Sialkot as he did not fulfil the conditions described under Article 62(1)(f) of the Constitution read with Section 99(1)(f) of the Representation of People’s Act (ROPA) 1976.

The PTI leader Usman Dar had filed a petition before the IHC, seeking disqualification of Khawaja Asif for concealing his Iqama.

The IHC had held that Khawaja Asif wrongly stated his occupation in the nomination form as business to conceal his employment and salary with the UAE company from the electorate of NA-110, Sialkot. The IHC had also held that Khawaja Asif has purposely concealed his salary Of AED 9,000 in his statement of assets and liabilities in the nomination form. Khawaja Asif, however, had challenged his disqualification in the Supreme Court and had submitted that that there is no constitutional bar on employment of members of the National Assembly.

On June 1, a three-member bench of the apex court headed by Justice Umer Ata Bandyal and comprising Justice Faisal Arab and Justice Sajjad Ali Shah set aside the verdict of the IHC, disqualifying Khawaja Asif from membership of Parliament.

After the decision of the apex court, Khawaja Asif remained safe from lifetime disqualification and eligible for contesting the general elections, held on July 25.

In its detailed verdict, the apex court ruled that even if the PML-N leader had rendered legal advice on phone, the respondent has failed to demonstrate that the petitioner or any of his family members own any shares in the foreign company which has financial dealings with the federation of Pakistan and their competing financial interests have undermined the impartiality of the petitioner by leaking any information to the said company or unduly benefited it in any manner that falls within the ambit of conflict of interest.

The order said it has also not been established that the petitioner (Khawaja Asif) by using his official position was instrumental in extracting some undue benefit from the federal government in favour of the UAE company. The court observed that the Black’s Law Dictionary defines conflict of interest as ‘a real or seeming incompatibility between ones private interest and one’s public or fiduciary duties.

“To serve personal interest means to give ‘preferential treatment’ by using one’s official privileges or misusing confidential information to benefit someone else or one’s own interests,” said the verdict, adding that there are numerous examples that come to mind which can reflect the essence of a conflict of interest situations such as the prospect of personally gaining financial benefits subject to an approval of a project, introducing policy that are friendly to one’s private interests or lobbying to approve a friend’s tender or application just to help his interests.

“In the present case there is absolutely no allegation that the petitioner (Khawaja Asif) received some lucrative opportunity in exchange for conferring benefits or sharing confidential information thereby abusing his public office,” the judgment ruled.

Justice Faisal Arab noted that the respondent (Usman Dar) has absolutely failed to point out any decision which the petitioner 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,” says the detailed verdict and noted that the learned judge of the High Court however erroneously defined such disclosure to be ‘vague and obscure’ and went on to declare the petitioner dishonest.

The detailed verdict observed that the petitioner’s declaration of foreign salary as one of his sources of income under the foreign employment contract exists on the record, so it can’t be said that it is case of non-declaration of a source of income.

The verdict recalled that in the case of Rai Hassan Nawaz, it has been held that there is a public interest behind the statutory prescription for obtaining the statements of assets and liabilities so that integrity and probity is maintained by the contesting candidates.

It was further held that where an asset is not disclosed and where no plausible explanation is forthcoming only then an elected member is to be unseated.

“In the present case the respondent (Usman Dar) has failed to rebut the explanation of the petitioner and failed to point out that salary proceeds or any part of it, whether in cash or kind or in the form of receivables, existed at the time of filing of the nomination papers which remained undeclared. Thus no case of concealment of an asset is made out,” the verdict ruled.