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Petitioner: Khawaja Muhammad Asif VS Respondent: Muhammad Usman Dar and others
Court Name: Supreme Court of Pakistan Judge(s): Sajjad Ali Shah, Umar Ata Bandial, Faisal Arab Title: Khawaja Muhammad Asif vs Muhammad Usman Dar and others Case No.: CIVIL PETITION NO. 1616 OF 2018 Date of Judgment:2018-10-19 Reported As: 2018 SCMR 2128, 2018 SCP 1320, PLJ 2019 SC 127 Result: Appeal allowed
Judgment FAISAL ARAB, J.- The petitioner has impugned the decision of the Islamabad High Court dated 26.04.2018 rendered in a constitution petition in which respondent No.1 succeeded in obtain ing a writ in the nature of quo warranto against the petitioner , who was a member of the National Assembly and holding the portfolio of foreign minister . The case of respondent No.1 before the High Court was that the petitione r whilst holding public offices in Pakistan continued to serve a UAE based company called the International Mechanical & Electrical Company LLC as its fulltime employee. It was submitted that the petitioner held the portfolio of federal minister for Water & Power from 08.06.2013 to 28.07.2017 and foreign minister from 04.08.2017 to 26.04.2018 and hence not only violated the oath of his office and the rule of conflict of interest but also failed to disclose his monthly salary derived from such employment in the statement of assets and liabilities filed under the provisions of Sections 12 (2) (f) and 42A of the Representation of the Peoples Act, 1976, now repealed (RoP A for short) and thus stood disqualified to be member of the National Assembly . 2. Disqualification of the petitioner was also sought on the ground that no income tax on salary derived from employment with the UAE Company was paid, which was his obligation under Section 102 of the Income Tax Ordinance, 2001. Yet another ground on the basis of which disqualification was sought that the petitioner failed to declare a sum of AED 5,000/- in his statement of assets and liabilities which were lying deposited in his account bearing No. 6201853775 maintained with National Bank of Abu Dhabi, UAE on the date when he filed his nomination paper . 3. In the impugned judgment the reasons that mainly prevailed with the learned High Court in disqualifying the petitioner under Article 62 (1) (f) of the Constitution were; that the petitioner's employment with a UAE based company at the time when he was a member of the federal cabinet has given rise to serious questions of conflict of interest; that the source of income from foreign employment and the salary derived therefrom was not appropriately disclosed by the petitioner in his nomination paper as only 'business' was declared to be his source
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of income; that the petitioner did not pay income tax on the foreign salary under Section 102 of the Income Tax Ordinance, 2001 and; that the petitioner failed to declare a sum of AED 5,000/- that were lying deposited in his account No. 6201853775 maintained with National Bank of Abu Dhabi in a UAE bank. Aggrieved by this decision of the High Court, the petitioner has filed the present petition. 4. Learned counsel for the petitioner argued that the High Court erred in not considering the fact that the entire controversy was put at rest in the election petition which ought not to have been set at naught in a fresh round of litigation initiated through a quo warranto proceedings on account of the bar contained in Article 225 of the Constitution. On merits of the case he submitted that the petitioner was justified in describing his occupation as business, which was his dominant source of income; that the petitioner had disclosed his monthly salary settled under the foreign employment contract in the tax return filed with the nomination papers and as no cash was left in hand from such salary in the form of savings, all being already spent, after stating the salary to be AED 9,000/- the figure '0' was written in the tax return, hence it cannot be said that income from salary was concealed and; that non-disclosure of a sum of AED 5,000/- lying deposited in petitioner's UAE bank account No. 6201853775 was only an honest omission. He submitted that in the presence of these facts, there was no basis for the High Court to conclude that the petitioner fell short in fulfilling the condition of honesty as envisaged in Article 62 (1) (f) of the Constitution, particularly when there were no allegations of embezzlement, bribery or misappropriation of public property was made against him in the writ petition. 5. In rebuttal, learned counsel for respondent No. 1 argued that by declaring his occupation to be business, the petitioner concealed the fact that he also derived income from salary under a written employment contract executed with the UAE based company; that he took employment with UAE based company while holding the portfolios of Defence and Finance Minister, which raised the question of conflict of interest; that no income tax was paid on his foreign salary income under the laws of Pakistan. Lastly it was argued that the petitioner also failed to list AED 5,000/- as one of his assets which were admittedly lying deposited in his bank account maintained with the National Bank of Abu Dhabi at the time of filing his nomination paper and hence failed to demonstrate himself as an honest person in terms of Article 62 (1) (f) of the Constitution. 6. Before we proceed to examine the merits of the case, we find it appropriate to first discuss the scope of Article 62 (1) (f) of the Constitution in matters that relate to failure of an elected member of the National Assembly or a Provincial Assembly to declare his assets in his nomination paper. 7. The provisions of election laws are designed to facilitate the general public to know what assets the contesting candidates own and what liabilities they owe before they are elected and what variation has taken place in their assets and liabilities on a year on year basis after being elected. Hence the election laws require every contesting candidate to file his or her statement of assets and liabilities and when elected was required to declare his assets and liabilities every year with the Election Commission. In this manner the net-worth of all elected members is maintained on the records of the Election Commission which is useful in noticing changes that may have occurred in their assets and liabilities after entering upon their office. In case an asset not declared by an elected member comes to light, his details of assets and liabilities would help in ascertaining whether concealment was intended to cover some wrongdoing. The whole purpose behind seeking details of assets and liabilities under the election laws is to discourage persons from contesting elections for a seat in the Parliament or a Provincial Assembly who have concealed assets acquired through some wrongdoing. Simultaneously it also aims at those members as well who hitherto may have held untainted record, be discouraged from indulging in corruption and financial wrongdoings after entering upon their office. Hence whoever contests an election for a seat in the Parliament or a Provincial Assembly, is mandatorily required by law to be forthright in declaring all his assets which he owns and all liabilities he owes. Before RoPA was repealed and replaced by the Election Act, 2017 it was applicable to the all candidates who contested the 2013 elections. Under Section 12 (2) (f) of RoPA where an asset owned by a contesting candidate was not declared at the time of filing of the nomination paper for any reason and such non-disclosure was timely brought to the notice of the Returning Officer, he had the power to reject the nomination paper under Section 14 (3) (c) of RoPA. Such rejection was avoidable under proviso (ii) of Section 14 (3) (c) of RoPA which states that the Returning Officer shall
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not reject a nomination paper where the defect was remedied forthwith. In case the defect was not remedied and the nomination paper was rejected, even then, in terms of the proviso (i) to Section 14 (3) of RoPA, such candidate was still competent to contest the election if he had filed another nomination paper either in the same constituency or in another constituency that fulfilled all the requirement of Section 12 (2) (f) of RoPA. In case he has not chosen to contest elections from any other constituency , he still remained eligible to contest any future election and the earlier rejection of his nomination paper would not be an obstacle merely on account of non-compliance with the requirements of Section 12 (2) (f) of RoPA. So where an omission to declare an asset had been pointed out by any rival candidate to the Returning Officer at the appropriate stage of the election process, it would at best result in rejection of the nomination paper . Where the objection to seek such rejection has failed before the Returning Officer or before the Election Tribunal constituted to hear Election Appeals before the elections or the time to throw such challenge has gone by, the stage to challenge the candidature of a contesting candidate at pre-polling stage comes to an end. After the elections, the rival candidate may choose to file an election petition before the Election Tribunal to challenge the candidature of an elected member for non-compliance with the provisions of elections laws. When the above stated stages of challenge under the election laws are over, the belated awakening of the rival candidate to point out any omission with regard to non-declaration of an asset would be hit by the bar contained in Article 225 of the Constitution. However, there is exception to this rule of finality, which we shall now proceed to discuss. 8. It may so happen that an undeclared asset of an elected member that stands in his own name or in the name of his spouse or dependent children or any of his business entities gets discovered after the time to challenge an election under the election law has expired and had it been declared it would have exposed his dishonesty qua such an asset. The right time to call in question such concealment would obviously arise when such a fact becomes known, therefore, no cutof f period can be fixed or legal bar can be imposed to seek a declaration of dishonesty with regard to such an asset that remained concealed from the records of the Election Commission. We may clarify here that this declaration of dishonesty cannot be sought from the Returning Officer at the time of raising objections to a nomination as his scope of work is only to scrutinize the nomination papers in a summary manner within two to three days and at the most reject a nomination for non compliance with the requirement of making requisite declarations but not to pass a judicial verdict on the issue of honesty of a contesting candidate in terms of Article 62 (1) (f) of the Constitution. Thus upon finding a nomination paper to be noncompliant with the election law all that a Returning Officer can do is to reject a nomination paper without attributing any sort of dishonesty to the contesting candidate. It is only when a contesting candida te has already been declared disqualified under Article 62 (1) (f) of the Constitution by a competent court of law that the Returning Officer can reject his nomination paper straight away on that basis. Hence where an undeclared asset that had remained concealed from the records of the Election Commission comes to light and some dishonest act is associated with such an asset then the court of competen t jurisdiction would scrutinize the issue of disqualification within the ambit of Article 62 (1) (f) of the Constitution. If the outcome of the scrutiny is that a declaration of dishonesty is to be made then the court would make such a declaration or it may in the first instance choose to put the investigative machinery of the state into motion. Based on the material coming on the record the test of honesty would be applied and in case the elected member is found dishonest he would be disqualified for life. 9. While considering a case of dishonesty in judicial proceedings what should not be lost sight of is that on account of inadvertence or honest omission on the part of a contesting candidate a legitimately acquired asset is not declared. This may happen as an honest person may perceive something to be right about which he may be wrong and such perception cannot necessarily render him dishonest though the omis sion would invariably result in rejection of his nomination paper had such a fact is pointed out to the Returning Officer at the time of scrutiny of nomination papers or in proceedings available under the election laws. There are many conceivable instances where an omission to declare an asset on the face of it cannot be regarded as dishonest concealment. For example, where an inherited property is not declared on account of mistake of fact or an asset acquired from a legitimate source of income is not listed in the nomination paper. Suchlike omissions at best could be categorized as bad judgment or negligence but certainly not dishonesty. As mentioned earlier even the proviso to Section 14 (3) (d) of
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RoPA envisaged that rejection of a nomination paper on account of failure to meet the requirements of Section 12 of RoPA would not prevent a candidate to contest election on the basis of another validly filed nomination paper. Hence mere omission to list an asset cannot be labeled as dishonesty unless some wrongdoing is associated with its acquisition or retention which is duly established in judicial proceedings. In our view attributing dishonesty to every omission to disclose an asset and disqualify a member for life could never have been the intention of the parliament while incorporating Article 62 (1) (f) in the Constitution. All nondisclosures of assets cannot be looked at with the same eye. In our view no set formula can be fixed with regard to every omission to list an asset in the nomination paper and make a declaration of dishonesty and impose the penalty of lifetime disqualification. In a judgment from the foreign jurisdiction in the case of Aguilar vs. Office of Ombudsman decided on 26.02.2014 by the Supreme Court of Philippines (G.R. 197307) it was held that dishonesty is not simply bad judgment or negligence but is a question of intention. There has to exist an element of bad intention with regard to an undeclared asset before it is described as dishonest. Unless dishonesty is established in appropriate judicial proceedings, Article 62 (1) (f) of the Constitution cannot be invoked to disqualify an elected member for life. 10. Where a matter with regard to an undisclosed asset is taken to court, it would not form the opinion that it is a case of dishonest concealment without first calling upon the elected member to explain the source from which such an asset was acquired. Where no satisfactory explanation is forthcoming and the undeclared asset also does not commensurate with the elected member 's known sources of income, it would give rise to the presumption that unlawful means may have been applied with regard to such an asset. It is the credibility of the explanation that would be the determining factor as to whether nondisclosure of an asset carries with it the element of dishonesty or not. The test of honesty with regard to non-disclosure of assets and liabilities is to be applied in that context only and certainly not in a case where a clean asset has not been declared on account of bad judgment or inadvertent omission. In the impugned judgment, the learned High Court itself was conscious of the fact that where there is a case of non-disclosure of an asset the same ipso facto does not render a person to be dishonest . In this regard, a judgment of this Court cited by respondent No. 1's counsel in the case of Rai Hassan Nawaz Vs. Haji Muhammad Ayub (PLD 2017 SC 70 ) was referred where it was held as follows :- "8. We, therefore, observe that any plausible explanation that exonerates, inter alia, mis-declaration of assets and liabilities by a contesting candidate shou ld be confined to unintended and minor errors that do not confer any tangible benefit or advantage upon an elected or contesting candidate. 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 whethe r 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 ROP A is intentional or otherwise. This view finds support from the statutory aim and purpose of requiring all contesting candidates to file their statements and declarations as envisaged in Section 12(2) of the ROP A. Clearly there is a public interest object behind the statutory prescription for obtaining the said statements and declaration. It is to ensure integrity and probity of contesting candidates and therefore all legislators. 11. The above discussed essential element of disqualification with regard to non-declaration of an asset within the ambit of Article 62 (1) (f) of the Constitution has also been recognized in a recent judgment of this Court in the case of Muhammad Hanif Abbasi Vs. Imran Khan Niazi (PLD 2018 SC 189) wherein in paragraphs 100 and 103 holding as under:- "100. In the passage referred above, the Court is addressing an undisclosed asset, existence whereof is expressly admitted through the coffers of an entity whose financial dealings were already doubted and formed part of the network of persons and entities allegedly holding disproportionate assets attributed to the erstwhile Prime Minister, his dependents and benamidars. It cannot, therefore, be contented that dishonesty is attributed in the said judgment without reference to any alleged design, intention, scheme, background or impropriety. Consequently, to our minds the larger Bench has not expunged the requirement of establishing the "dishonesty" of conduct of an aspirant or incumbent member of a Constitutional Legislature in order for the disqualification under Article 62 (1) (f) of the Constitution and Section 99 (f) of the ROPA to be attracted. Each and every word in the
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Constitution bears a meaning and place, which must be given effect because redundancy cannot be assigned to the Constitution. Accordingly, in earlier judgments by this Court in the matter of "dishonest conduct," violation of constitutional norms required by Article 62 (1) (f) in its phrase "honest and ameen" have been deduced with caution and care.... To the same effect are observations made in Iftikhar Ahmad Khan Bar v. Chief Election Commissioner Islamabad and others ( PLD 2010 SC 817 ). 103. The insistence by learned counsel for the petitioner that any error or omission in the declaration of assets by a candidate for election or a legislator incurs his disqualification under Article 62 (1) (f) of the Constitution posits a wide proposition of law. If at all, this may have limited relevance where the context involves corruption or money laundering in state office, misappropriation of public property or public funds, accumulation of assets beyond known means or abuse of public office or authority for private gain. These allegations are not germane to the present case. There is no involvement here of public property or funds, abuse of public office and authority, corruption or breach of fiduciary duty. Consequently, the argument of the learned counsel for the petitioner on this score fails. 12. Making differentiations and distinctions are the tools that are always applied in judicial proceedings in the determination of the penalties and punishments, therefore, the notion of proportionality and making distinctions cannot be lost sight of while considering an omission to declare an asset. Intervention through a writ in the nature of quo warranto in financial matters against an elected member can only be justified when non-disclosure of an asset is meant to conceal a wrongdoing. As law does not envisage that every rejection of nomination paper on account of non-disclosure of an asset would lead to disqualification under Article 62 (1) (f) of the Constitution therefore unless some wrongdoings associated with an undeclared asset is established the outcome of the case would not culminate into disqualification for life. 13. Having discussed the circumstances in which Article 62 (1) (f) of the Constitution can be invoked in the matters relating to declaration of assets, we shall proceed to examine the first ground of attack with regard to the petitioner's employment contract executed with a UAE based company that required him to serve as a fulltime employee in UAE on monthly salary basis. 14. Before the High Court both the petitioner 's counsel and the UAE Company which expressed its stand by filing a certificate, had maintained that the petitioner was not required to be physically present in UAE to serve the company . It was stated that he was to render advice on phone only. The learned High Court however in its decision treated the petitioner as a fulltime employee who served the company with his physical presence in UAE. In this background, what needs to be examined is whether the petitioner actually went to UAE to serve the company or rendered advice on phone or was the employment contract intended to whiten black money . From the amalgam of these divergent situations truth needs to be spotted. 15. It is highly inappropriate for a parliamentarian or member of a provincial assembly , who holds a position in the cabinet, to take a fulltime job in a foreign country where in terms of the written contract he is committed to work six days a week, however at the same time it seems highly improbable that a person holding such a position would actually be rendering his services as a fulltime employee elsewhere. Had it been true, it would have certainly become headline news in this day and age where such kind of information does not remain hidden from the media for long. It would have also been a case of frequent absence of the petitioner from Pakistan at the expense of his official duties. On the basis of the contents of the contract of employment the status of the petitioner was though shown to be of a fulltime employee of the UAE Company but in actuality the petitioner is not shown to have gone to UAE to work for the company in such capacity . He retained his presence in Pakis tan as a member of the federal cabinet. Even if the petitioner had rendered legal advice on phone, the respondent has failed to demonstrate that the petitioner or any of his family membe rs own any shares in the foreign compa ny which has financial dealings with the federation of Pakistan and their competing financial interests have undermined the impartiality of the petitioner by leaking any information to the said company or unduly benefited it in any manner that falls within the ambit of conflict of interest. It has also not been established that the petitioner by using his official position was instrumental in extracting some undue benefit from the Federal Government in favour of the UAE Company .
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16. Black' s Law Dictionary defines conflict of interest as 'a real or seeming incompatibility between ones private interest and one's public or fiduciary duties'. To serve personal interest means to give 'preferential treatment' by using one's official privileges or misusing confidential information to benefit someone else or one's own interests. There are numerous examples that come to mind which can reflect the essence of a conflict of interest situations such as the prospect of personally gaining financial benefits subject to an approval of a project, introducing policy that are friendly to one's private interests or lobbying to approve a friend' s tender or application just to help his interests. In the present case there is absolutely no allegation that the petitioner received some lucrative opportunity in exchange for conferring benefits or sharing confidential information thereby abusing his public office. The respondent has absolutely failed to point out any decision which the petitioner had taken in discharge of his official duties that was likely to result in any financial or other material benefits for himself or his family or friends or any decision he took that had influenced him in the performance of his official duties. Thus no case of conflict of interest is made out. 17. For whatever its worth, as the execution of the employment contract with the UAE Company is an undeniable reality , the petitioner was required to declare the salary settled thereunder . Failure to do so would have resulted in taking the risk of rejection of his nomination paper…
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