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December 16, 2017

Court cannot ignore ommission that is not dishonesty: Justice Arab

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December 16, 2017

ISLAMABAD: While agreeing with the lead judgment written by Chief Justice Mian Saqib Nisar, Justice Faisal Arab wrote in his separate note that the courts "should not close their eyes to an omission which on the face of it could not be said to be dishonesty."

It would turn sections 12(2)(f) and 42A of Representation of People’s Act (ROPA) into the sword of Damocles hanging over the heads of lawmakers, embroiling many of them in frivolous litigation even with regard to assets acquired prior to assuming the responsibilities of their office or attained with clean money, he wrote "dilating on scope of the term ‘honest’ contained in Article 62(1)(f) of the Constitution".

Justice Arab wrote that there can be many examples where it can be said that an omission on the face of it is not dishonesty. Omission to list an inherited property or pensionary benefits received by one’s spouse or the plot allotted by the government in acknowledgment of services rendered are some of the instances which cannot be stated that an MP intentionally concealed its disclosure in order to cover some financial wrongdoing. "Such omissions at best could be categorised as bad judgment or negligence but not dishonesty," the judge said.

He also discussed ‘honesty’ and ‘dishonesty’ of an MP and before he became a legislator. The judge wrote that he was of considered opinion that a person’s honesty prior to his becoming a lawmaker can be called into question only if he has accumulated wealth through fraud, embezzlement, bribery or tax evasion and has been so declared by a competent court of law.

Insofar as his dishonesty with regard to the assets acquired after becoming a lawmaker are concerned, the same can be scrutinized by the apex court in quo warranto proceedings, which will determine whether a case for acquisition of assets beyond known sources of income is made out, the justice wrote justifying the hearing the present petition by the Supreme Court.

Justice Arab said that "where an asset is acquired by a member or his spouse or any of his dependents after becoming an MP and it surfaces through any source, which he has failed to disclose, he in quo warranto proceedings can be called to explain the means of its acquisition. If he is unable to extend a judicially acceptable explanation, only then such non-disclosure would be regarded as a failure to pass the test of honesty as envisaged under Section 99(1)(f) read with Article 62(1)(f)."

Apart from being declared disqualified from holding his office, the MP will also face charges for possessing wealth beyond his known sources of income. "Thus concealment of an asset from the public eye that was acquired after entering upon office, for which the member is unable to give a judicially acceptable explanation, is to be treated as an act of concealment with dishonest intentions." This is the difference in attributing dishonesty with regard to an omission to disclose an asset acquired before and after becoming a lawmaker, the judge ruled.

“In our jurisprudence, like in any other, one common penalty is never imposed for all kinds of dishonest acts, what to speak of imposing penalty for a dishonest act as well as for an omission made on account of negligence or bad judgment. Attributing dishonesty to every omission to disclose an asset should not be made a rule set in stone and applied to disqualify a member on the touchstone of Section 99(1)(f) or Article 62(1)(f). The courts should not close its eyes to an omission which on the face of it could not be said to be dishonesty.”

He clarified that "dishonesty can be attributed to an MP for an act committed prior to his election if he has been so adjudicated by a court of law. This is the mandate of Article 62(1)(f) which reads a person shall not be qualified to be elected or chosen as a Member of Parliament unless- (f) he is sagacious, righteous, non-profligate, honest and ameen, there being no declaration to the contrary by a court of law."

The last phrase of Article 62(1)(f), he said, is clearly intended to mean that where an MP is attributed to be financially corrupt before he has entered the arena to contest election for a seat in a legislature then the complainant must demonstrate without any ambiguity that such a member has been declared by a court of law to be financially dishonest. "Thus the term ‘honest’ contained in Article 62 (1) (f) of the Constitution has to be interpreted in a restricted sense keeping this last phrase in mind which states there being no declaration to the contrary by a court of law."

If the application of these provisions is stretched beyond this, the judge held, a political opponent in his desire to seek removal of his rival from the political scene would call into question an asset owned by his opponent that was though acquired not only prior to his becoming an MP but even prior to his holding any public office or for that matter any office of trusteeship or in his capacity as custodian of rights of others.

"Where a member has failed to declare an asset in his nomination form that was acquired prior to his election and there is no adjudication of dishonesty with regard to its acquisition by a competent court of law, the remedy provided under the election laws is to be availed, which only entails rejection of the nomination form.

"Once this remedy relating to such category of non-disclosure is availed under the provisions of election laws or the time to avail it has gone by, the same being not a case of disqualification falling within the ambit of Article 62(1)(f), no more remains a live issue on account of the bar contained in Article 225."

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