Justice Athar Minallah authored the 35-page verdict, endorsed by the other judges, disqualifying Khawaja Asif under Article 62(I) (f) of the Constitution for not declaring his job contract and wages in the nomination papers. Justice Athar Minallah made it clear in the detailed judgement that court is handing down this verdict with a heavy heart. The paragraph 33 of this judgement is an interesting read.
“We have handed down this judgment with a heavy heart not only because a seasoned and accomplished political figure stands disqualified but more so because the dreams and aspirations of 342,125 registered voters have suffered a setback,” Justice Minallah wrote in the judgement.
Justice Minallah wrote that the court would like to observe that it’s not a pleasant duty for any court to be called upon to examine and exercise powers of judicial review which may lead to the disqualification of a member of the Parliament (MPA).
Citing former chief justice Hamoodur Rehman he wrote, “While exercising power of judicial review, the judiciary claims no supremacy over the organs and that it is a duty assigned to the courts to see that the Constitution prevails.”
Justice Minallah wrote: “Thus the consistent view of the courts has been that if the determination of any question raised before the court requires interpretation or application of any provision of the Constitution, the court is obliged to adjudicate upon the same notwithstanding that the action impugned or the questions raised has political overtones”.
Justice Minallah included quotes from former judgments to explain how judicial review can trump political standing and can cause an interpretation of the Constitution. He also added that the courts’ verdicts are all a ‘consequence’ of political forces resorting to courts.
“Instead of settling disputes at political forums, especially the Parliament, when political forces resort to courts, it has consequences not only for institutions but the public as well,” he writes. Justice Minallah added that such actions lower public confidence in the legislative system and expose the judiciary to controversies of adversarial politics.
“The political forces are expected to settle their grievances before the political forums rather than taking the precious time of the bona fide litigants awaiting justice to be dispensed,” the IHC judge wrote, adding that members of the Parliament are the real stakeholders of the country.
“It would have been appropriate if the political party to which the petitioner belongs had raised the issue at hand in the Parliament before invoking the jurisdiction of this court,” Justice Minallah wrote, sighting the irony that Pakistan remains among the few countries without a formal code of ethics for MPAs and Cabinet.
Justice Minallah is of the belief that a written code is needed to avoid situations such as the ones that have been observed in the facts and circumstances of the said petition which disqualified Asif.
The honorable judge also wrote that the reason for non-disclosure of the occupation as an employee of a company and receiving a monthly salary, despite challenges to the foreign remittances. “Would a person of ordinary prudence treat this as an honest non-disclosure of material information prescribed under the Act of 1976? We are afraid that the answer is an emphatic no,” Justice Minallah writes.
“Asif had definitely concealed and withheld this material information from his constituents at the crucial time of submitting nomination papers and later when the declarations made were challenged,” he added. The material non-disclosure of information was indeed fatal to Asif, Justice Minallah wrote.
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17 November, 2019