Disqualification Case Against Imran Khan
In a case filed by Muhammad Hanif Abbasi against Imran Khan Niazi (Constitution Petition 35 of 2016) in the Supreme Court of Pakistan, an issue raised for disqualification pertains to the non-disclosure of a flat in London held through an offshore company (Niazi Services Limited) registered in Jersey, Channel Island, on May 3, 1984 and having remained active until 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 that company’s assets and liabilities. However, the shareholder of a company (being a resident under Pakistan income tax law), is obliged to show his or her share(s) in the wealth statement if it was required to file. The beneficial owner of any offshore company till 2003 was also liable to pay wealth tax under the erstwhile Wealth Tax Act 1963.
It is alleged that in his nomination papers filed for the 2013 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 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 could lead to his disqualification under Article 62(1)(f) of the Constitution. There is a clear conclusion of Mr. Justice Ejaz Afzal Khan in his judgment (endorsed by Mr. Justice Sh. Azmat Saeed and Mr. Justice Ijaz ul Ahsan) in the Panama case (Imran Ahmad Khan Niazi v Mian Nawaz Sharif & 9 Others—CP No. 29 of 2016) that in the absence of undisputed evidence, the Supreme Court would not resort to Article 62(1)(f) while exercising jurisdiction under Article 184(3) of the Constitution.
It must be highlighted that the Supreme Court under Article 184(3) has always been reluctant to receive evidence or material on the issue of honesty, and in the absence of a proper evidentiary hearing to never proceed to disqualify a person. It was obvious that in such a case no remedy of appeal would be available against the adjudication of disqualification. This is exactly what happened in case of the incumbent Prime Minister. For lack of incontrovertible evidence, in order of the Court (by a majority of 3 to 2 — Mr. Justice Asif Saeed Khan Khosa and Mr. Justice Gulzar Ahmed dissenting), a Joint Investigation Team (JIT) was ordered. The JIT was constituted on May 5, 2017 and would file its first interim fortnightly report on May 22, 2017.
The people want to know about the correct law for disqualifying an elected member in cases where for some reason he or she escaped disqualification at the time of filing his or her nomination papers and such fact or event having been discovered subsequently. It is established law that in appropriate cases and subject to availability of admitted facts or irrefutable evidence, this can be done by the High Court under Article 199 and by the Supreme Court under Article 184(3).
In the case of Lt. Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore (PLD 1970 SC 98), the Supreme Court clarified that, where there was question of a right to continue in public office, the apex court could interfere “through proceedings not exactly as quo warranto but in the nature of quo warranto with a wider scope”. The real issue is that of admitted facts and/or irrefutable evidence that is missing in the petitions before the Supreme Court — in the case of Nawaz Sharif and Imran Khan.
The Supreme Court of Pakistan in the case of Rai Hassan Nawaz v Haji Muhammad Ayub & others (2017 PLD 70 SC) held that,
“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.”
The Election Tribunal under section 76A of the Representation of Peoples Act 1973 (ROPA) could have started suo moto proceedings in the light of information that had become public through the Panama Papers in respect of assets held abroad by a number of public officeholders in their names or through legal devices, including benami, trustees and nominees, etc. Had this process been initiated, there could have been no need for the Supreme Court to constitute a JIT. The unwillingness of the Election Tribunal, National Accountability Bureau (NAB), Federal Investigation Agency (FIA), Federal Board of Revenue (FBR) and Election Commission of Pakistan (ECP) to investigate the financial affairs of legislators is the real malady leading to the exercise of extraordinary jurisdiction by the Supreme Court under Article 184(3).
Since the matter is sub judice, propriety demands that the merits of cases should not be discussed, but it must be highlighted that the statements of assets and liabilities along with other financial disclosures under section 12(2) of the ROPA and section 115 of the Income Tax Ordinance 2001, are essential documents to determine the suitability of any candidate. All such disclosures, as held by the Supreme Court in Rai Hassan Nawaz v Haji Muhammad Ayub & others (2017 PLD 70 SC), “are crucial for demonstrating the legitimacy and bona fides of the accrual and the accumulation of economic resources by such a candidate.”
The Supreme Court of Pakistan held in Muhammad Siddique Baloch v Jehangir Khan Tareen (PLD 2016 Supreme Court 97) that a person who was untruthful or dishonest or profligate “has no place in discharging the noble task of law making and administering the affairs of State in government office”. The Court, however, aptly highlighted that “disqualification is not possible without establishing it through incontrovertible evidence”. The Supreme Court held in Muhammad Saeed v. Election Petitions Tribunal, West Pakistan, etc. (PLD 1957 SC 91) that “each ingredient of the misdemeanor must be affirmatively proved by direct or circumstantial evidence”— it is this rule has since been reiterated with approval in many cases and would certainly be followed in pending ones.
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