Pakistan Muslim League-Nawaz (PML-N) leader Hanif Abbasi told the Supreme Court on Saturday that pleas based on mistakes, misapprehensions, bona fide intentions, a lack of mens rea or the absence of the intention to deceive could not be considered valid excuses in the light of the July 28 Panama Papers judgement.
In yet another rejoinder, moved through his counsel Mohammad Akram Sheikh, the PML-N leader — who is seeking the disqualification of Pakistan Tehreek-i-Insaf chief Imran Khan and secretary general Jahangir Tareen — told the court that it could inquire, examine or assess any matter it deemed relevant, since the case before the bench was of an inquisitorial nature.
The rejoinder came in response to the stance taken by Mr Khan in his revised concise statement, filed on Oct 14, that dishonesty would apply, for the purposes of disqualification, only if it could be proven that Mr Khan had received the proceeds of corruption.
The rejoinder was filed before the Supreme Court in response to earlier directions by a three-judge bench, headed by Chief Justice Mian Saqib Nisar.
“This is not an acceptable plea in view of the Panama Papers judgement,” the rejoinder contended, highlighting that former prime minister Nawaz Sharif was disqualified under Article 62(1)(f) of the Constitution only for not declaring his entitlement to a salary from his son’s company — Capital FZE — even though his Iqama (work permit) was not part of the pleadings in that case.
“There was no assertion whatsoever that the receipt of the salary meant receipt of corrupt[ion] money,” the rejoinder argued, recalling that the mere fact of not declaring an asset was held to be evidence of dishonesty justifying the ex-PM’s disqualification from the National Assembly.
Referring to another plea, adopted by Mr Khan in his amended statement — stating that declarations from old elections cannot become the basis for his de-seating in the wake of the 2013 polls — Mr Abbasi explained that this plea was not a correct legal position.
To substantiate, he cited a 2013 Supreme Court judgement in which a member of the National Assembly was declared not qualified for the elections held in the same year, although his declaration pertained to the elections held in 2008.
Similarly, Mr Khan’s defence that his failure to make correct declarations before the ECP was due to bona fide mistakes, lack of proper advice and that he had nothing to gain from not declaring the asset, was also not justified in the wake of the five-judge Supreme Court verdict in the Panama Papers case.
In that case, the matter was taken to be a case of strict liability, the rejoinder alleged, adding if non-declaration was committed, disqualification should follow.
Referring to the stance that Mr Khan had nothing to gain by not disclosing his utilisation of 100,000 pounds to authorities in Pakistan, was also not legally sustainable, the rejoinder said. In his nomination papers for the Mianwali seat in the 2002 elections, Mr Khan had declared the Draycott flats in London as his assets.
Once the London apartment was sold, the nature of this asset changed from immovable property to liquid assets but it continued to be his asset and had to be declared in the same manner as the flat was in the declarations for 2003.
There is no legal weight in the assertion that Mr Khan had nothing to gain by not disclosing the 100,000 pounds retained by Niazi Services Limited after the disbursement of part of the sale proceeds of his London property.
This is because, the rejoinder stated, the question currently being adjudicated by the Supreme Court pertained to his disqualification on account of false declarations and falling short of the criteria laid out in Article 62 of the Constitution. That criteria, Mr Abbasi contended, did not depend on whether the candidate in question gained anything as a result of the false declaration or not.
As the principle has been clearly enunciated by the Supreme Court in the case of Nawaz Sharif, non-declaration had been treated as a matter of strict liability. No excuses or explanations were sought or accepted in that case, the petitioner stated.
The petitioner also accused Khan of making false statements when he stated that following the sale of the London flats, Niazi Services became a dormant/shell company. But the statement of accounts attached with the revised concise statement showed that the funds continued to be routed through its accounts.
Published in Dawn, October 29th, 2017
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