IHC disqualifies Khawaja Asif for not being ‘Sadiq, Ameen’

Unveils verdict with ‘a heavy heart’ on a petition filed by the PTI’s Usman Dar


Rizwan Shehzad April 26, 2018
Foreign Minister Khawaja Asif. PHOTO: REUTERS/FILE

ISLAMABAD:  

In yet blow to the ruling Pakistan Muslim League-Nawaz (PML-N), the Islamabad High Court (IHC) has disqualified Foreign Minister Khawaja Asif under Article 62 (1)(f) of the Constitution for non-disclosure of his employment in a UAE company and monthly salary  in his nomination papers.

The IHC’s larger bench – comprising Justice Athar Minallah, Justice Aamer Farooq and Justice Mohsin Akhtar Kayani – held on Thursday ‘with a heavy heart’ that Asif was not qualified to contest the 2013 polls as he did not fulfill requirement of being ‘Sadiq’ and ‘Ameen’ – truthful and trustworthy.

While allowing a petition of the Pakistan Tehreek-e-Insaf’s (PTI) Usman Dar, who had contested against Asif in 2013 general elections at the NA-110 constituency, the bench directed the Election Commission of Pakistan (ECP) to de-notify Asif as member of the National Assembly of Pakistan.

“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 judgment authored by Justice Minallah read.

Dar’s counsel, Sikandar Bashir Mohmand, said Asif was not entitled to hold office of an MNA or that of a federal minister under the ‘Unlimited Term Employment Contract’ between him and International Mechanical & Electrical Company (IMECL), a limited liability company located in Abu Dhabi and existing under the UAE’s laws.

In the judgment, the bench said it is obvious from the facts and circumstances that Asif had deliberately and willfully not disclosed his status as an employee of the company and his per month salary, despite having been expressly put to challenge by the other contesting candidates.

The court envisaged that disclosure would have led to giving up the ‘Iqama’ and the hefty salary paid by the company for some advice sought telephonically by a foreign based employer from the prospective defense and then foreign minister of Pakistan.

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“We have deeply pondered but could not persuade ourselves that this deliberate and willful nondisclosure was a bona fide or honest omission,” Justice Minallah stated.

He said the lack of honesty was established by not disclosing the employment as an occupation and the salary received per month despite the vague and obscure amount declared as foreign remittances having been specifically challenged.

“We have not been able to fathom why the Respondent [Asif], even after being notified as Member of the Majlis-e-Shoora (Parliament) and then as Minister of Water and Power and later Defense, had executed fresh employment contracts with the foreign based company.

“The conduct raises questions regarding conflict of interest,” the verdict said.

Asif through his counsel Rashdeen Nawaz Kusuri took the stance that the three employment contracts had been executed merely to fulfill the requirements of the laws of the UAE and he never remained fulltime employee of the company.

The court, however, noted that Asif has further complicated matters for himself by saying so. “In other words … [it is] tantamount to acknowledging that he had executed a false contract with the intent of deceiving the laws of another sovereign State,” it added.

Subsequently, the judgment defined the expression ‘false’ from the Black’s Law Dictionary as untrue, deceitful, not genuine etc.

The larger bench held that the non-disclosure was that of the employment as an occupation and the salary per month received, adding that these ought to have been truly declared in the nomination paper or, at best, when the statement regarding foreign remittances and details were challenged.

The bench noted that Asif’s counsel could not show a single document to even remotely suggest that the income as salary received from the employer had been declared in the nomination paper.

“Employment was essentially one of the main occupations of the Respondent [Asif] when he had executed the nomination paper,” the judgment read.

It said besides influencing minds of the constituents, serious questions regarding conflict of interest would have been raised if disclosure regarding the nature of the employment and the terms and conditions had been made in the nomination paper.

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The court held that Asif’s had been employed on a full time basis and the relationship between him and the company was that of an employee and employer. Asif was also registered as a skilled labourer and a card was duly issued by the Ministry of Labour, UAE.

His name appears at serial No.303 among the total 1,250 employees, his job description is ‘Management Consultant’ and employees at serial No302 and 304 respectively is described as ‘Concrete Mason’ and ‘Shovel Operator Driver’, it added.

The court referred to Supreme Court’s recent judgments in the deposed premier Nawaz Sharif cases wherein it has been held that the expression ‘honest’ as used in Article 62(1)(f) refers to legal honesty, an objective concept and not mere moral or ethical honesty, the latter being subjective.

It held that a person cannot be disqualified under Article 62(1)(f) in the absence of an established and proven breach of a legal obligation or violation of law.

It said Article 62(1) (f) is not interfered with while passing of the 18th amendment and the parliament has itself set a high bar of qualifications for being eligible to hold the public office as its member.

Asif had not declared bank account maintained with the National Bank of Abu Dhabi in the statement of assets and liabilities attached with the nomination paper and the account was declared for the first time in 2015 before the ECP in the annual statement of assets and liabilities, the verdict said.

In addition, the court said, there is no dispute whatsoever regarding the execution of the three employment contracts and no-disclosure of the bank account in the nomination paper.

An unpleasant duty

Before parting, the judges expressed, they would like to observe that it is not a pleasant duty for any court to be called upon to examine and exercise powers of judicial review which may lead to an elected representative being disqualified as member of the parliament.

However, they said, when political forces instead of settling disputes at the political forums, particularly the parliament resort to the courts, it has consequences not only for the institutions but the litigant public as well.

“This conduct of political forces lowers public confidence in the legislature on the one hand and on the other hand exposes the institution of the judiciary to the controversies of adversarial politics,” the judges noted.

The bench said the political forces are expected to settle their grievances before the political forums rather than taking the precious time of the bona fide litigants awaiting justice to be dispensed.

They held that parliament is a symbol of unity of the federation and the peoples’ will, adding that the parliament deserves utmost respect and its prestige and public confidence depends on the conduct of its members who represent the actual stakeholders i.e. the people of Pakistan.

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They said it would have been appropriate if the political party to which the petitioner belongs had raised the issue at hand in the parliament before invoking the jurisdiction of the court.

“It is ironic that Pakistan is amongst the few countries where a formal code of ethics and conduct for members of the parliament and the cabinet has not been prescribed so as to avoid situations such as have been observed in the facts and circumstances of the instant petition,” it said.

 

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