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Opinion

January 14, 2017

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Laws of disqualification

An extensive debate is going on in the media and elsewhere about the laws related to disqualification of elected members of parliament, especially in the wake of petitions admitted by the Supreme Court for alleged perjury and concealments of assets by the incumbent prime minister and references against Imran Khan and Jahangir Tareen forwarded by the speaker of the National Assembly for misdeclarations.

It is a common perception that declarations of assets/liabilities/income/expenditure, filed by a majority of legislators, do not justify their standard of living. The question baffling us is: who can disqualify any legislator, and on what grounds?

For disqualification of an elected member, Article 63(2) of the constitution requires reference to the speaker of the National Assembly or provincial assembly or Senate, as the case may be. The ultimate decision lies with the Election Commission of Pakistan on such a reference. At the time of election, every candidate whose name appears in the nomination papers is required to give a declaration that he fulfils the qualifications specified in Article 62 and is not subject to any of the disqualifications specified in Article 63 or any other law for the time being in force. In terms of section 12(2) of Representation of the People Act 1976 (ROPA), the following are to be filed along with nomination papers:

a declaration that no loan for an amount of Rs2 million or more, obtained from any bank, financial institution, cooperative society or corporate body in his own name or in the name of his spouse or any of his dependents, or any business concern mainly owned by him or the aforesaid, stands unpaid for more than one year from the due date, or has got such loan written off;*

a declaration that he, his spouse or any of his dependents or a business concern mainly owned by him or the aforesaid, is not in default in payment of government dues or utility charges, including telephone, electricity, gas and water charges of an amount in excess of Rs10,000 for over six months at the time of filing of nomination papers;*

a statement specifying his educational qualifications, occupation, national identity card number and national tax number, if any, along with attested copies thereof; and*

* a statement of his assets and liabilities and those of his spouse and dependents on the prescribed form as on the preceding 30th day of June.

The Supreme Court of Pakistan in a recent judgement in Civil Appeal No 532 of 2015 [Rai Hassan Nawaz v Haji Muhammad Ayub & others] held: “Where assets, liabilities, earnings and income of an elected or contesting candidate are camouflaged or concealed by resort to different legal devices including benami, trustee, nominee, etc, arrangements for constituting holders of title, it would be appropriate for a learned election tribunal to probe whether the beneficial interest in such assets or income resides in the elected or contesting candidate in order to ascertain if his false or incorrect statement of declaration under section 12(2) of the ROPA is intentional or otherwise.”

It is worthwhile to note that in the above case, it is also held by the Supreme Court that the election tribunal under section 76A of the ROPA is conferred with the power to probe, either at its own motion or on the basis of material brought to its knowledge from any source, any false or incorrect statements made by a returned candidate in respect of his own assets and liabilities and those of his spouse or his dependents. It is thus not necessary, as commonly believed, that disqualification by the election tribunal can only take place if a petition is filed by opposing candidate(s) or any other person(s). The object of section 76A of ROPA is to promote public interest by ensuring that elected public representatives have untainted financial credentials of integrity, probity and good faith.

The election tribunal has failed to discharge its obligation under section 76A of ROPA in light of information that recently became public in respect of assets held abroad by a number of public officeholders in their names or through legal devices, including benami, trustee and nominee etc. Had this process been initiated, there could have been no need for petitions in the Supreme Court and references in election commissions. The failure of the tribunal and targeting of only the sitting prime minister has created an anomalous situation as many similarly placed are not proceeded with under the law.

Unfortunately, the National Accountability Bureau (NAB), Federal Investigation Agency (FIA), Federal Board of Revenue (FBR) and Election Commission of Pakistan (ECP) have also failed to discharge their duties, especially that of investigating the financial affairs of legislators. In view of this extraordinary situation, the matter was taken up as public interest litigation under Article 184(3) by the Supreme Court. Since the matter is sub judice, propriety demands that the merits of the case should not be discussed. 

It is well-established that honest and truthful declaration of assets and liabilities by a returned candidate in his nomination papers constitutes a benchmark for reviewing his integrity and probity in the discharge of his duties and functions as an elected legislator. Statements of assets and liabilities, and other financial disclosures under section 12(2) of the ROPA, are essential documents for the public to determine the suitability of any candidate. All such disclosures, as held by the Supreme Court in Civil Appeal No 532 of 2015, “are crucial for demonstrating the legitimacy and bona fides of the accrual and the accumulation of economic resources by such a candidate”.

The Supreme Court of Pakistan held in Muhammad Siddique Baloch v Jehangir Khan Tareen PLD 2016 Supreme Court 97 that a person who was untruthful or dishonest or profligate had no place in discharging the noble task of law-making and administering the affairs of state in government office. However, it needs to be highlighted that disqualification is not possible without incontrovertible evidence.

The Supreme Court held in Muhammad Saeed v Election Petitions Tribunal, West Pakistan, etc PLD 1957 SC 91 that each ingredient of the misdemeanour must be affirmatively proved by direct or circumstantial evidence and this rule has been reiterated with approval in many later cases.

The writer is an advocate of the Supreme Court and adjunct faculty at LUMS.

Email: [email protected]

Twitter: @drikramulhaq

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