Daily Times

A three-member Bench of the Islamabad High Court disqualified Khawaja Asif on April 26, 2018. The opinion of the Court, authored by Mr Justice Ather Minallah, is significant for two reasons. It offers insight and further clarifies the rules laid down by the Supreme Court (SC) in its three latest disqualification judgments. Secondly, the Court, being a non-elected entity, was conscious of the counter-majoritarian difficulty presented by the petition seeking the disqualification of Khawaja Asif under the Constitution.

The Court acknowledged its limited role as a coordinate branch in democracy and expressed the pain with which it reached its conclusion: “We have handed down this judgment with a heavy heart not only because a seasoned and accomplished political figure stands disqualified but more so because the dreams and aspirations of 342,125 registered voters have suffered a setback.” The opinion also expressed remorse over the failure of the political processes in settling disputes, leaving for the Court to intervene in such matters. There will always be arguments, and good ones, calling for more deference from the Courts. But legal realism has taught us that judicial discretion is exercised within the context of the broader political and intellectual trends of the times. And so we have it, one more disqualification from the Court!

Perhaps with two recent judgments of the Supreme Court in the cases of Nawaz Sharif and Jahangir Tareen, the conclusion reached by the court did not come as a surprise. Tareen was disqualified on ‘blatant’ and ‘shocking untrue statement’ that is not expected ‘from an honest person’ and since ‘SVL or Hyde House was never transferred to any trust by (him), thus, it is his asset which he has failed to declare in his nomination papers’. Nawaz Sharif, before him, was disqualified on ‘having failed to disclose his un-withdrawn receivables constituting assets from Capital FZE Jebel Ali, UAE in his nomination papers filed for the General Elections held in 2013 … and having furnished a false declaration under solemn affirmation.’

Transparency is the bedrock of democracy. And don’t be surprised, if efforts made to thwart accountability and undermine transparency are met with a similar response in the future

The High Court, in this case, further clarifies the test for disqualification under Article 62(1)(f) of the Constitution. It does not treat the test as one based on purely strict liability and reaffirms the apex Court’s position of a distinction drawn between a political ‘novice’ and a seasoned politician. ‘In the case of the latter category the standard or bar is phenomenal’, the Court wrote. It also observed that Mr Asif holds the degree of bachelors of law. He was definitely a seasoned and accomplished politician and, by no stretch of the imagination, a ‘novice’ in the field of politics. The opinion also noted: ‘a non-disclosure sans an element of design, scheme or intent would also not make a candidature open to be questioned if it could be shown that it was a bona fide error and that there was no intention to gain any benefit by withholding such information from the constituents.” With a very persuasive reasoning — a hallmark of Justice Minallah’s opinions from the Bench — the Court concluded, “We have deeply pondered but could not persuade ourselves that… deliberate and wilful non-disclosure was a bona fide or honest omission”

The chips — once the Court had treated the petition as one of Quo-Warranto — seemed heavily staked against Mr Asif. As the Court noted, “There is no dispute whatsoever regarding the execution of the three employment contracts and non-disclosure of the … bank Account in the nomination paper (by Mr Asif). According to the first of those employment contracts, Mr Asif served on full-time basis, and that relationship persisted even when he had assumed the office of Foreign Minister, till the time the judgment was announced in open court. If this does not qualify as a conflict of interest, then what does?”

Informed choices by the electorate weighed heavily for the Court. The Court called people the ‘most important stakeholders’ in the democratic system. ‘It is the voter who has to make a choice and it is crucial for this purpose that every candidate makes a true and honest declaration, particularly when any information mentioned in the nomination paper has been challenged.’ Essentially, all public office holders are fiduciaries of the people. And the breach of the trust reposed by people in discharge of duties, whether through declarations on oath or through issues presented by conflict of interest; must attract strict consequences including disqualification under the Constitution and subsequent proceedings in accountability courts.

Our superior Courts have lately expanded the contours of jurisprudence on public accountability. The Courts have defiantly and jealously guarded entrenched fundamental rights and protected values of the people; that they should be withdrawn from the political vicissitudes; that they must not be submitted to vote; that they must not depend on the outcome of any election. It is our right, that the people we return to the National Assembly, enable our informed consent by making public their complete antecedents and professional or business interests. Transparency is the bedrock of democracy. And don’t be surprised, if efforts made to thwart accountability and undermine transparency are met with a similar response in the future — even at the risk of making pure Montesquieuists uncomfortable!

The writer attended Berkeley and is a Barrister of Lincoln’s Inn

Published in Daily Times, May 23^rd 2018.