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June 14, 2018

Sh Rasheed would be disqualified if strict liability rules applied: Justice Isa


June 14, 2018

ISLAMABAD: Sheikh Rasheed will have to be disqualified if the rule of strict liability applied in disqualifying Nawaz Sharif as the prime minister, was invoked, it emerges from the minority judgement of Justice Qazi Faez Isa. However, he did not disqualify Sheikh Rasheed and suggested that the decision of the instant appeal be deferred till the questions raised and enumerated by him are finally adjudicated by the full court.

Justice Isa’s decision said that the judgements in the Panama case against the deposed premier clearly apply the strict liability principle; however, they did not follow other verdicts of the Supreme Court which held that mis-declaration or nondisclosure would only result in disqualification if the nondisclosure or mis-declaration circumvented a legal disability or disqualification.

Meanwhile, Justice Isa also wrote at another point: “. . . We must make every effort to dispel any impression that different persons are treated differently. Justice must not only be done but be seen to be done too. Every endeavour, therefore, should be made to resolve the prevailing legal uncertainty. The eligibility of members of Parliament should be ‘decided in accordance with one single and definite measure’.”

The judge also noted that after the Panama decisions, the case of Hanif Abbasi against Imran Khan was decided by another bench where the strict liability rule was not followed: “Arithmetical accuracy in reconciling amounts and events is not required in such a case of mis-declaration of assets. Only a coherent account of the sources of funds, their application and movement should be shown by reference to consistent and reliable evidence, even though it may suffer from gaps…” (at page 284).

The justice wrote that there are judgements of the apexcourt which apply the principle or rule of strict liability and hold that any nondisclosure or mis-declaration results in disqualification. The verdicts in the Panama case evidently advocate this principle or rule, he said.

A member of the National Assembly, who was subsequently elected to be the prime minister, was disqualified as MP and, consequently, as the premier, because he did not disclose the income said to have been earned by him as he had a work permit (Iqama) of Dubai the issuance of which was conditional on the Iqama holder being paid a salary; therefore, irrespective of whether he actually received a salary, it was sufficient to constitute his “earnings” and then deemed to have become his asset, the nondisclosure whereof was held by the top court to constitute mis-declaration and, hence, as a consequence he was disqualified, the judge wrote.

He said that even though it was not held by this court that the candidate suffered from any inherent disqualification and if he had disclosed his said salary/asset, he would have been disqualified. The judgement said that having determined that Sheikh Rasheed did not disclose all his agricultural land and mis-declared the value of his house in his nomination form the consequences of such nondisclosure and mis-declaration need consideration. If the principle or rule of strict liability is applicable he will have to be disqualified. But, if the strict liability rule is not applicable then the consequences of this nondisclosure and mis-declaration need to be explored further. However, in cases where the nondisclosure or mis-declaration gives an illegal advantage to a candidate then such nondisclosure or mis-declaration would terminate his candidature, and if he has been elected to his disqualification and consequent removal.

For example, Justice Isa noted, if a person was convicted of an offence under the National Accountability Ordinance (NAO) but his nomination form did not disclose his conviction or give an earlier date of his conviction to mislead that the ten year period of disqualification had already expired, such a mis-declaration or nondisclosure would violate the NAO as it would enable an unqualified person to participate in the elections.

Similarly, a person who isn’t yet 25 years of age, which is the minimum age to contest National Assembly elections, mis-declares his date of birth to falsely show himself to be 25 years of age or older, such a person too merits removal because he was not competent to contest. However, a mis-declaration where, for instance, the candidate who is 26 years old mistakenly mentions his age as 25 years, such mis-declaration did not overcome or disregard a law which prohibited his participation in the elections and, therefore, it could be categorised as inconsequential, the judge wrote.

He said that in the case of Sheikh Rasheed, the mis-declaration made by him apparently did not offend any law, in that if he had disclosed his entire land holding and had shown the value of the said house to be 48 million rupees, he would still be able to contest the elections.

Justice Isa wrote that when divergent views are expressed by different benches of the same number of judges of the top court, the matter needs early resolution and all the more so when, “Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other courts of Pakistan”. The applicable test with regard to elections and the qualification-disqualification of candidates is indeterminate and has serious repercussions, which assume critically in an election year.

The order said that the terms of the national and the four provincial assemblies will conclude in a few months and general elections will be held. Confusion would result when returning officers throughout the country apply different Supreme Court decisions in accepting or rejecting candidates’ nomination forms. And confusion will be further perpetuated when, after the elections have been held, election petitions are filed before election tribunals designated to hear and decide them in the absence of a clear legal pronouncement on the subject. Matters would then come up before this court in its appellate jurisdiction and possibly too in its extraordinary original jurisdiction under Article 184(3) of the Constitution. Legal uncertainty may undermine the credibility of the electoral process, embitter political adversaries, encourage political commentators and the public to cast uncalled for aspersions on the returning officers, the election tribunals and possibly on this Court as well if the interpretation of the law favourable to a party is not applied.

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