ISLAMABAD: The Supreme Court on Monday explained that a returned candidate would be disqualified only if he or she has dishonestly acquired assets and is hiding them to derive certain benefits.

“If the non-disclosure or mis-declaration is such that it gives an illegal advantage to a candidate, then it will lead to termination of his candidature,” explained the SC judgement on an appeal by candidate Shamona Badshah Qaisarani.

Through her appeal, Ms Qaisarani had called in question the Aug 12, 2018 order of the Lahore High Court’s (LHC) Multan bench that upheld the January 2015 order of the Multan election tribunal of rejecting her nomination papers for the PP-240 (Dera Ghazi Khan-I) by-election.

Verdict comes on an appeal by PP-240 candidate against upholding of election tribunal’s decision by LHC

Authored by Justice Sayyed Mazahar Ali Akbar Naqvi, who was part of a three-judge SC bench that also comprised Justice Umar Ata Bandial and Justice Qazi Mohammad Amin, the verdict observed that every non-disclosure or mis-declaration would not be sufficient enough to permanently disqualify a member of the parliament or a candidate.

Her nomination papers were challenged by a rival candidate, Khawaja Mohammad Dawood Sulemani, before the election tribunal on the grounds that she made false, incorrect declaration in the nomination paper since she did not disclose a piece of agricultural land, which was in her ownership.

The election tribunal of Bahawalpur accepted the application, declared the by-elections void, de-notified the appellant and ordered fresh elections in the constituency. She challenged the order before the SC but her appeal was dismissed on May 9, 2016.

In the meantime as the fresh by-polls were scheduled for Jan 17, 2015, she again submitted her nomination paper and was again challenged by Mr Sulemani stating that according to the election tribunal of Bahawalpur, she was not ‘sadiq’ and ‘ameen’ (sagacious and honest) and therefore not entitled to contest the elections. But the returning officer accepted her nomination papers on Dec 27, 2014 which was then challenged before the election tribunal of Multan.

The election tribunal of Multan allowing the petition against her nomination in January 2015 disqualified her under Article 62(1)(f) of the Constitution. Consequently, the matter was taken up before the LHC that upheld the Multan tribunal’s order.

Justice Naqvi, in his judgment, observed that the election tribunal of Multan disqualified the appellant in a slipshod manner since the act of the appellant at best could be termed a bad judgement or negligence and as the property was legitimately acquired through inheritance, the same could not be labelled as acquired through dishonest means.

For this negligence, she could not be disqualified for life, the judgement said and consequently, the appeal was allowed and the impugned judgment was set aside.

While citing the 2018 Khawaja Mohammad Asif case, Justice Naqvi observed it was candidly held that merely the fact that a candidate had not declared an asset in the nomination papers would not end in their disqualification but it would have to be seen whether the act of non-disclosure of the asset was with dishonest intent or not.

Only if there was dishonest intent behind the non-disclosure, the candidate would be disqualified, the judgement stated, while elaborating that the credibility of an explanation would be the determining factor as to whether non-disclosure of an asset carried with it the element of dishonesty or not.

Published in Dawn, May 4th, 2021