ISLAMABAD: The Supreme Court on Tuesday asked the counsel for Pakistan Muslim League-Nawaz (PML-N) leader Hanif Abbasi point-blank which of his fundamental rights were breached that led him to approach the court to seek the disqualification of top Pakistan Tehreek-i-Insaf (PTI) leaders.

“This petition is a counterblast because there was a challenge to your party head,” Chief Justice Mian Saqib Nisar observed, alluding to the Panama Papers case filed by PTI chief Imran Khan against former prime minister Nawaz Sharif.

The Supreme Court resumed hearing of Mr Abbasi’s petition seeking the disqualification of Imran Khan and PTI secretary general Jahangir Khan Tareen, and observed that the question of the petitioner’s bona fide was always relevant in cases of quo warranto, such as this one.

Bench asks PML-N leader’s counsel which of his rights were violated by Imran Khan, Jahangir Tareen

Why should the petitioner not approach a high court through a quo warranto petition under Article 199 of the Constitution, the bench asked.

Advocate Azid Nafees, representing Mr Abbasi, argued that Article 17 was involved in this case, which ensured freedom of association.

But the chief justice reminded him that Article 17 guaranteed the right to contest elections, not to challenge them.

In response, the counsel quoted the 1997 Manzoor Wattoo case in which the Lahore High Court had held that the conduct of the petitioners was irrelevant in such cases since the courts were always under oath to enforce the Constitution.

Referring to the defence adopted by Mr Tareen in the insider trading case by challenging the vires of sections 15-A and 15-B of the Securities and Exchange Commission Ordinance 1969, the counsel argued that even if the provisions of a particular law were declared unconstitutional by the apex court, it did not absolve the defendant from the consequences of his actions if it was proved that he had been dishonest and untruthful in terms of Article 62(1)(f) of the Constitution.

Citing the 2013 Mian Najeebuddin Awaisi case, the counsel argued that once a disqualification was handed down, it would always remain so.

The chief justice, however, observed that if sections 15-A and 15-B of the relevant law were held to be ultra vires, then insider trading would cease to be an offence.

But the counsel maintained that when Mr Tareen had been penalised for admitting to offences under sections 214 and 216 of the Companies Ordinance 1984, he could be seen to be in breach of fiduciary duty and was thus no longer truthful in the eyes of Article 62(1)(f) of the Constitution.

Justice Umar Ata Bandial, however, reminded the counsel that since acts of insider trading were not required to be declared in the candidate’s nomination papers or under election laws, they could not entail disqualification for the respondent.

When the chief justice asked the counsel to explain the meaning of ameen, the counsel said that as a director of JWD Sugar Mills, Mr Tareen was a trustee and held vital information. Due to the alleged offence of insider trading, he contended, the PTI leader had rendered himself disqualified from becoming the director of a public company.

Though Mr Tareen was not sentenced, he was directed by SECP to return the gains, the counsel recalled, adding that he violated the law of the land and was guilty of an offence.

But the chief justice asked how the court could disqualify a person after the lapse of so many years for a violation of the law committed in his business dealings.

When asked what law made an omission or a mistake a violation of a fiduciary duty that attracted disqualification Article 62(1)(f) of the Constitution, the counsel recalled that section 217 of the Companies Ordinance was clear about the consequences of such actions.

The payment of compensation by Mr Tareen did not amount to a conviction, Justice Bandial observed.

Azid Nafees will continue his arguments today (Wednesday).

Published in Dawn, November 8th, 2017

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