The real issue in petitions concerning Prime Minister Nawaz Sharif and PTI chief Imran Khan is that of admitted facts and/or irrefutable evidence, which is missing
“All the other courts in this country are courts of law whereas this Court is not just a court of law but also the court of ultimate justice. It is obvious that when it comes to exercise of the said jurisdiction of this Court to do complete justice a strict application of the black letter law may not stand between this Court and the noble cause of justice if the circumstances of the case so warrant” — Justice Asif Saeed Khosa in Panama Scandal Case (Imran Khan Niazi v Mian Nawaz Sharif & 9 Others)
In the petition filed by Muhammad Hanif Abbasi against Imran Khan Niazi in the Supreme Court of Pakistan, one issue raised for disqualification of the latter is non-disclosure of London flat held through an offshore company (Niazi Services Limited) registered in Jersey, Channel Island, on May 3, 1984. The company is said to have remained active till October 1, 2015.
It is an established position of law that companies and shareholders are distinct entities and a person even if wholly owning a company is not obliged to declare its assets and liabilities. However, the shareholder of a company (as resident under Pakistan Income Tax Law) is obliged to show his share(s) in the wealth statement, if required to file. Till 2013, the beneficial owner in any offshore companies was also liable to pay wealth tax under the erstwhile Wealth Tax Act of 1963.
It is alleged that in his nomination papers filed for 2013 general elections, Imran Khan did not show any share in any offshore company. Imran Khan is on record to admit having an offshore company to avoid paying capital gains tax in the UK for Flat 2, 165 Draycott Avenue, London (South Kensington) — that was purchased in 1984 and sold on March 17, 2003. The moot question is whether Imran Khan violated any provision of law that can lead to his disqualification under Article 62(1) (f) of the Constitution. There is clear conclusion reached by Mr Justice Ejaz Afzal Khan in his judgement [endorsed by Mr Justice Sh Azmat Saeed and Mr Justice Ijazul Ahsan] in the Panama Papers case that in the absence of undisputed evidence, Supreme Court would not resort to Article 62(1)(f) while exercising its jurisdiction under Article 184(3) of the Constitution.
The Supreme Court has always been reluctant to receive evidence or material on the issue of honesty and it has never proceeded to disqualify a person under Article 184(3) in the absence of a proper evidentiary hearing. It was obvious that in such a case no remedy of appeal would be available against adjudication of disqualification. This is exactly what happened with regard to the incumbent prime minister in the Panama Papers case. In instances where for some reason they have escaped disqualification at the time of filing nomination papers, high courts can proceed with disqualification proceedings under Article 199 and the Apex Court under Article 184(3) subject to availability of admitted facts or irrefutable evidence.
In the case of Lt Col Farzand Ali and others v. Province of West Pakistan (PLD 1970 SC 98), the Supreme Court had clarified that where the question was of a right to continue in public office, it could interfere “through proceedings not exactly as quo warranto but in the nature of quo warranto with a wider scope”. Thus, the real issue is in the aforementioned petitions concerning Nawaz Sharif and Imran Khan is that of admitted facts and/or irrefutable evidence which is missing.
The Supreme Court of Pakistan in the case of Rai Hassan Nawaz v Haji Muhammad Ayub & others (PLD 2017 SC 70) had 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.”
Under section 76A of the Representation of Peoples Act of 1973 (ROPA), Election Tribunal could have started suo motto proceedings in light of information that became public through Panama Papers. If this process had been initiated, there would have been no need for the Supreme Court to constitute a Joint Investigation Team (JIT). The unwillingness of the Election Tribunal, or the National Accountability Bureau (NAB), the Federal Investigation Agency (FIA), the Federal Board of Revenue (FBR) and the Election Commission of Pakistan (ECP) to investigate financial affairs of legislators is the real malady leading to exercise of extraordinary jurisdiction by the Supreme Court under Article 184(3).
Since the matter is sub judice, propriety demands that merits of the cases should not be discussed. Nonetheless, it must be highlighted that statement of assets and liabilities along with other financial disclosures under section 12(2) of the ROPA and section 115 of the Income Tax Ordinance of 2001 are essential documents to determine the suitability of any candidate. All such disclosures, as noted by the Supreme Court, “are crucial for demonstrating the legitimacy and bona fides of the accrual and the accumulation of economic resources by such a candidate.”
In Muhammad Siddique Baloch v Jehangir Khan Tareen PLD 2016, the Supreme Court held that an untruthful or dishonest or profligate person “has no place in discharging the noble task of law making and administering the affairs of State in government office”. The Court, also, aptly highlighted that “disqualification is not possible without establishing it through incontrovertible evidence”. In Muhammad Saeed v. Election Petitions Tribunal PLD 1957, the Court had noted that “each ingredient of the misdemeanor must be affirmatively proved by direct or circumstantial evidence”— this rule has since been reiterated with approval in many cases and would certainly be followed in those pending hearings.