ISLAMABAD: In the much awaited detailed judgment of Panama review petitions, the five judges will mainly give reasoning of the principle laid down by them that even a minor mis-declaration of assets cannot be resulted in ‘de-seating’ of a legislator and can only result in ‘disqualification’ under Article 62(1)(f) during hearing of a petition under Article 184(3) of the Constitution.
The delay in announcing the detailed judgment has many adverse impacts on the process of trial of accountability courts which has already begun. The judges had observed during the hearing of review petitions that they would clarify in the judgment that any remarks given by them about the JIT members in July 28 judgment must not have any impact on the proceedings of the trial in accountability courts. However, the September 15 short order rejecting all review petitions didn’t have the mention of this clarification and explanation on some other points promised by the judges during the hearing. So the detailed judgment in review petitions is very much awaited and proceedings in many cases are being jeopardised because of its so much delay.
During the course of hearing of review petition, Khawaja Haris, the counsel for the former prime minister Nawaz Sharif, had argued that even if the court considered non-declaration of un-withdrawn salary as a ‘receivable’ and hence an ‘asset’, under section 76A of the Representation of People’s Act 1976 (ROPA), his client, at maximum, could be ‘de-seated’. Haris had argued that his client could not be ‘disqualified’ under Article 62(1)(f) of the Constitution as it requires a whole legal process which was not carried out in this case. The five-member bench responded that the section 76A of ROPA is only for the Election Tribunals and the apex court in the jurisdiction of 184(3) cannot exercise powers under 76A and can only use 62(1)(f) under which a person is declared as ‘dishonest’ and become disqualified. Khawaja Haris had even cited judgment in case of MNA Justice (R) Iftikhar Ahmad Cheema who was ‘de-seated’ after admitting a clear non-declaration of one of his assets. The bench has held that case of MNA Justice (R) Cheema was heard by Election Tribunal and the Supreme Court heard his appeal as an appellate forum and not in the jurisdiction of Article 184(3).
The 5-member bench now has to give detailed reasoning of wisdom behind laying out this principle that in jurisdiction of 184(3), even a minor mis-declaration will only result in ‘disqualification’ of a legislator and that his de-seating cannot be considered in the suo moto jurisdiction.
When judges hearing the review petition remarked that they cannot use powers under section 76A of ROPA which are only available to an Election Tribunal, Khawaja Haris had come up with a very powerful argument that under NAB ordinance the power to order filing a reference are vested only with the NAB chairman but the SC has used those power and ordered filing of references though same is not possible under the relevant law. It is also being discussed in legal circles that the detailed judgment must not be delayed as it will have an impact on some other pending cases and delaying the judgment can be misunderstood or taken wrongly.
Section 76A of ROPA reads, “If an Election Tribunal, on the basis of any material coming to its knowledge from any source or information laid before it, is of the opinion that a returned candidate was a defaulter of loan, taxes, government dues or utility charges, or has submitted a false or incorrect declaration regarding payment of loans, taxes, government dues or utility charges, or has submitted a false or incorrect statement of assets and liabilities of his own, his spouse or his dependents under section 12, it may, on its own motion or otherwise, call upon such candidate to show cause why his election should not be declared void and, if it is satisfied that such candidate is a defaulter or has submitted false or incorrect declaration or statement, as aforesaid, it may, without prejudice to any order that may be, or has been made on an election petition, or any other punishment, penalty or liability which such candidate may have incurred under this Act or under any other law for the time being in force, make an order.
(a) declaring the election of the returned candidate to be void ; and
(b) declaring any other contesting candidate to have been duly elected.
(2) If on examining the material or information referred to in sub-section (1), an Election Tribunal finds that there appear reasonable grounds for believing that a returned candidate is a defaulter or has submitted a false or incorrect declaration referred to in sub-section (1) it may, pending decision of the motion under subsection (1), direct that the result of the returned candidate shall not be published in the official Gazette.
(3) No order under sub-section (1) or sub-section (2) shall be made unless the returned candidate is provided an opportunity of being heard.”
