ISLAMABAD: As the Supreme Court commences hearing of a set of petitions from Thursday seeking review of the Dec 15, 2017 judgement of exonerating Prime Minister Imran Khan and disqualifying Jahangir Khan Tareen, a request was made a day ahead of the hearing to form a full court of all judges instead of a three-judge bench.

“It has become a matter of greater public importance since during the pendency of the review petition, Imran Khan has been elected as MNA in the general elections and is occupying the highest office of the executive organ of the state i.e. Prime Minister of Pakistan,” pleaded an application moved before the Supreme Court on Wednesday by petitioner Hanif Abbasi through his counsel Mohammad Akram Sheikh.

The Supreme Court bench comprising Chief Justice Mian Saqib Nisar, Justice Umar Ata Bandial and Justice Faisal Arab will take up the review petition of PTI secretary general Jahangir Khan Tareen, who was disqualified on Dec 15, 2017, as well as that of PML-N leader Hanif Abbasi against the judgement that exonerated PTI chief Imran Khan from all corruption charges.

The fresh application of Hanif Abbasi recalled that the chief justice had earlier constituted larger benches to resolve conflicting judgements to bring about consistency and for the advancement of the interests of the ultimate the people of Pakistan.

The apex court commences hearing today

The applicant recalled that his review petition has sought to declare that Imran Khan was not competent to be a member of parliament since he does not fulfil the qualifications for membership laid down in Article 62(1)(f) of the Constitution as well as section 99(1)(f) of the Representation of People Act, 1976.

The applicant recalled how a different bench of the Supreme Court on July 28 last year had declared former prime minister Nawaz Sharif as not being honest under Article 62(1)(f).

In this case it was alleged that Nawaz Sharif did not disclose in his nomination forms for elections of 2013 some assets in the nature of receivables, being his entitlement to salary from Capital FZE — a company owned by his family.

From the foregoing narrative it can be seen that a rule of strict liability had been applied, the applicant argued, but in the Imran Khan case, it was clearly established from the record that Mr Khan had made mis-declarations and serious concealments regarding his own assets and liability as well as the assets of his wife.

The evaluation of these matters would also involve the nature of liability under the constitutional and statutory provisions relating to qualifications of a parliamentarian and whether the offence was one of strict liability.

Likewise in the case against Mr Tareen a similar question would be asked as to whether his acts of commission and omission constituted any breach of the requirements under the Constitution and the statutory provisions mentioned earlier, regarding honesty of a member of parliament and the dimensions of the applicable yardsticks.

Though in the case of Nawaz Sharif, the apex court applied the rule of strict liability, there have been comments from certain members of the Supreme Court about whether the presence of intention as well as mens rea was a mandatory prerequisite, an innocent misrepresentation or some oversight that also resulted in a declaration of lack of honesty.

The scope of the yardsticks to be applied when a case attracting constitutional and statutory provisions is to result in removal of a member of parliament, has very serious implication regarding his rights as stated in Article 4 of the Constitution and the provisions relating to fundamental rights, as well as rights of the entire voters of the constituency, the application argued.

The scope of rules and the principles, on the basis of which the Supreme Court has to act, also needs to be clarified as so far it is covered in mist and there are no uniform guidelines about how a disputed election would be treated by the court. Such election matters require a delicate balancing of the rights of the parliamentarian as well as the jurisdiction and judicial powers of the Supreme Court.

Meanwhile, in his review petition, filed through his counsel Sikandar Bashir Mohmand, the PTI leader pleaded before the Supreme Court that he could not present legal instruments and specific documents regarding his trust namely Shiny View Limited (SVL) and his property – Hyde House – in the earlier round of litigation because the same were neither in his personal knowledge, possession or control.

Jahangir Khan Tareen, however, argued that these documents were being furnished before the court now. “My understanding and knowledge of the trust arrangement, its legal aspect and components and its legal effect was that of a lay person gathered from my interaction with my professional advisers and the trustees,” he pleaded in the review petition.

These documents and legal instruments were internal to the trust, the trustees, SVL and its management and operations. The object of establishing the trust was to provide a family dwelling in England for the children, grandchildren for their use and benefit, an arrangement he wished to continue after his death and death of his spouse, Mr Tareen stated.

Published in Dawn, September 27th, 2018