Detailed verdict on Khawaja Asif case: SC explains what actually constitutes dishonesty

The Supreme Court declared mere omission to list an asset cannot be labelled as dishonesty unless some wrongdoing is associated with its acquisition or retention is duly established in judicial proceedings. A detailed verdict on the Khawaja Asif disqualification case said that attributing dishonesty to every omission to disclose an asset and disqualify a member for life could never have been the intention of the Parliament while incorporating Article 62 (1) (f) in the Constitution.
Islamabad High Court (IHC) had disqualified PML-N leader Khawaja Asif for life on account of non-disclosure of his assets in nomination papers. However, a three-judge SC bench headed by Justice Umar Ata Bandial and comprising Justice Faisal Arab and Justice Sajjad Ali Shah set aside the high court verdict.
The 22-page judgment, authored by Justice Faisal Arab, stated that all nondisclosures of assets cannot be looked at with the same eye. "In our view, no set formula can be fixed with regard to every omission to list an asset in the nomination paper and make a declaration of dishonesty and impose the penalty of lifetime disqualification."
It referred the foreign jurisdiction in the case of Aguilar vs Office of Ombudsman decided on 26.02.2014 by the Supreme Court of Philippines (GR 197307) which held that dishonesty is not simply bad judgment or negligence but is a question of intention.
"There has to exist an element of bad intention with regard to an undeclared asset before it is described as dishonest and unless dishonesty is established in appropriate judicial proceedings, Article 62 (1) (f) of the Constitution cannot be invoked to disqualify an elected member for life," said the judgment.
The judgment said where a matter with regard to an undisclosed asset is taken to court, it would not form the opinion that it is a case of dishonest concealment without first calling upon the elected member to explain the source from which such an asset was acquired.
It noted where no satisfactory explanation is forthcoming and the undeclared asset also does not commensurate with the elected member's known sources of income, it would give rise to the presumption that unlawful means may have been applied with regard to such an asset. It is the credibility of the explanation that would be the determining factor as to whether nondisclosure of an asset carries with it the element of dishonesty or not.
The test of honesty with regard to non-disclosure of assets and liabilities is to be applied in that context only and certainly not in a case where a clean asset has not been declared on account of bad judgment or inadvertent omission.
The judgment clarified that the declaration of dishonesty cannot be sought from the returning officer at the time of raising objections to a nomination as his scope of work is only to scrutinise the nomination papers in a summary manner within two to three days. At the most the returning officer can reject a nomination for non-compliance with the requirement of making requisite declarations but not to pass a judicial verdict on the issue of honesty of a contesting candidate in terms of Article 62 (1) (f) of the Constitution.
However, if a contesting candidate has already been declared disqualified under Article 62 (1) (f) of the Constitution by a competent court of law, the returning officer can reject his nomination paper straight away on that basis.
Justice Faisal Arab writes that while considering a case of dishonesty in judicial proceedings what should not be lost sight of is that on account of inadvertence or honest omission on the part of a contesting candidate, a legitimately acquired asset is not declared.
"This may happen as an honest person may perceive something to be right about which he may be wrong and such perception cannot necessarily render him dishonest though the omission would invariably result in rejection of his nomination paper," said the judgement.