AWAMI Muslim League chief Sheikh Rashid punches the air after the Supreme Court dismissed the petition seeking his disqualification.—Online
AWAMI Muslim League chief Sheikh Rashid punches the air after the Supreme Court dismissed the petition seeking his disqualification.—Online

ISLAMABAD: To the disappointment of the Pakistan Muslim League-Nawaz, the Supreme Court in a divided decision on Wednesday declared Awami Muslim League chief Sheikh Rashid Ahmed eligible to contest the July 25 general elections by dismissing a petition seeking his disqualification for life.

Justice Qazi Faez Isa, one of the members of a three-judge bench, however, dissented and requested Chief Justice Mian Saqib Nisar to constitute a full court comprising all judges of the Supreme Court to decide seven questions he enumerated in a separate note.

The majority judgement authored by Justice Sheikh Azmat Saeed dismissed the petition filed by Mr Rashid’s opponent Malik Shakeel Awan of the PML-N who had sought the disqualification of the politician from Rawalpindi on a number of grounds, including misdeclaration of his source of income and concealment of assets.

Divided judgement holds AML chief made no misstatement in his nomination papers

Sheikh Rashid had won the National Assembly seat from NA-55 (Rawal­pindi-VI) by securing 88,627 votes against Shakeel Awan who bagged 75,306 votes.

Mr Awan had challenged the Rawal­pindi election tribunal’s Feb 18, 2015 decision in the Supreme Court under Section 67(3) of the Representation of Peoples Act, 1976.

The apex court’s majority judgement held that no exception could be taken to the findings of the election tribunal which had rejected the election dispute. Referring to the dissenting note of Justice Qazi Isa in which it was suggested that the decision on the matter be deferred till the questions raised by him are finally adjudicated by the full court, Justice Saeed said such an exercise, if undertaken, was unlikely to be completed before the proposed general elections of 2018. “The election disputes both at the stage of scrutiny of the nomination papers and subsequently agitated through proceedings before the election tribunal, the high court and the apex court are an integral part of the election process both legally and politically,” he explained.

If the course of action as suggested by Justice Isa was followed, Justice Saeed feared, all the election disputes which would inevitably crop up before the returning officers, tribunals and high courts or the Supreme Court would not be adjudicated upon till the decision of Shakeel Awan’s appeal. In such circumstances, he observed, the very validity of the proposed general elections of 2018 would become questionable and the acceptance of its results by the participants almost impossible.

In fact the entire electoral process would be put at risk with repercussions too grave even to be contemplated let alone articulated, he said.

“Even otherwise the present case pertains to the validity of the judgement of the election tribunal challenged through the instant appeal. Through the question raised a very wide net has been cast encompassing also the jurisdiction of this court under Article 184(3) of the Constitution as well as the impact of different provisions relating to qualifications and disqualifications of members of the parliament and the provincial assemblies. Several of the questions raised obviously do not arise in the case at hand while others have been answered definitely by this court in its different judgements,” the verdict said.

“In our legal system, law evolves brick by brick and from judgement to judgement,” Justice Saeed observed. He said if the judgements pertaining to electoral disputes rendered by this court were carefully read, objectively understood and the ratio thereof correctly identified, it would be clear and obvious that principles of law, in this behalf, appeared to have been settled and consistently applied to the facts of each individual case.

“The difference in outcome, if any, is the result of difference in the facts of each case. Such principles of law do not require any further clarification on hypothetical considerations. The confusion, if any, is not in the judgements.

“This court, for that matter any court, seized of a lis is required to decide the same rather than to embark upon an academic exercise. We cannot shy away from adjudicating upon the case that comes before the court without attempting to ascertain and identify the principles of law as developed through the interpretative process of the previous judgements of this court and apply the same to the facts of the case,” Justice Saeed explained.

The majority judgement said it could not be held that Sheikh Rashid made any misstatement in his nomination papers. Therefore, no ground for interference with such findings had been made out, it said, adding that a half-hearted attempt was made by the appellant to dispute the income and sources in his nomination papers.

Such income, the verdict said, was reflected in the income tax returns of Sheikh Rashid which were also available on the record and appended with the nomination papers as well as for earlier financial years produced by the appellant himself wherein the source of income was set forth.

No moveable asset or bank account or source of income other than as disclosed in the nomination papers had been proved in evidence by the appellant, the judgement said, adding that in this view of the matter the tribunal rightly held that no material concealment or misstatement, in this behalf, in the nomination papers had been proved.

“Where a misstatement or an inaccuracy or concealment is established, the candidate would always have the opportunity to offer an explanation,” Justice Saeed wrote, adding that such explanation might or might not be found acceptable.

“In case of concealment, discrepancy and misstatement in the nomination papers, an explanation can be given by the candidate which may or may not be accepted by the court. And only if such explanation is found tenable no penal consequences would follow. The question of ‘strict liability’ does not arise with regard to misstatements in the nomination papers,” said the judgement.

Published in Dawn, June 14th, 2018

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