Experts underline several legal loopholes, saying bringing the case up at this point amounts to political mudslinging

Lahore: As a larger bench of the Islamabad High Court (IHC) has resumed hearing on the admissibility of a petition seeking former prime minister Imran Khan’s disqualification for failing to list Tyrian White as his daughter in his nomination papers, legal experts believe there are few chances of his disqualification on this count.

This, they say, is because under the Pakistani laws, the girl can not be recognised as his legitimate child unless a court declares her as such. Therefore, Tyrian’s exclusion from his nomination papers cannot be construed as a misstatement.

The petitioner, Mohammad Sajid, has sought Imran Khan’s disqualification under Article 62(1)(f) of the Constitution which requires a member of the parliament to be sagacious, honest and ameen. According to the petition, Mr Khan declared his two sons as his legal heirs, but did not include Tyrian White in the list.

The petition claims that the “concealed fact” stood confirmed by a judgement of paternity, rendered by a superior court in California, USA, which endorsed Tyrian’s mother, Sita White’s claim that Tyrian was fathered by Imran Khan.

In his reply to the instant petition in IHC, Imran Khan has neither accepted nor denied Sita White’s claim. Instead, he objected to the bench that was hearing the case, saying that the IHC did not have the jurisdiction to review the declaration related to Tyrian, and that such a matter could only be adjudicated by a civil court after recording evidence.

What is Imran Khan’s response?

In his response, Imran Khan stated that IHC’s former Chief Justice, Athar Minullah, and current Chief Justice Aamir Farooq, had declined to hear cases of a similar nature in the past.

He referred to the IHC’s January 2019 ruling on a petition filed by Hafiz Ehtisham, demanding that Imran Khan’s private life be looked into and he should be disqualified from holding public office in case it was found that he was the father of his putative daughter.

According to the ruling, “if the court takes this matter up, it will affect not only the girl’s rights but also the rights of the voters of the constituency from which Imran Khan has been elected as a member of the National Assembly.”

Imran Khan in his petition also referred to the Supreme Court verdict on the issue of concealment of dual nationality by the former member of the National Assembly, Faisal Vada, saying that “only when a person holds a public office can a petition be filed against him, and when that person leaves the public office, such a petition cannot be filed or entertained against him.” He pleaded that the court should reject the petition because he is no longer a member of the National Assembly.

Significantly, however, while he had earlier resigned as a member of the National Assembly, in subsequent by-elections he won from seven National Assembly constituencies which has been duly notified by the Election Commission of Pakistan (ECP).

The disqualification petition has had more than seven hearings so far, but the IHC has not yet decided whether or not it is admissible.

Can this case create problems for Imran Khan?

While the court proceedings continue, the question being raised is as to why this matter has been brought up again at this point.

Abid Saqi, a senior lawyer at the Supreme Court, said that there are political rather than legal motives involved. He believes that such issues should not be brought to the courts, nor should the courts get involved in personal matters because hearing such cases does not bring a good name to the courts themselves.

He questioned the wisdom behind constituting a larger bench for a case that should have been rejected right away, adding that the practice of disqualifying politicians should be abandoned once and for all. He said Khan’s disqualification would cause more chaos in the country.

Former secretary of the Supreme Court Bar Association, Shamimur Rehman Malik, expressed similar views. “Our law does not recognize an alleged illegitimate child as an heir, and a member of the parliament cannot be disqualified for not naming such a child in her/his nomination papers,” he said.

He further clarified that a person could not be declared a legal heir of someone unless she/he first petitions the court. Imran Khan might be in trouble only if Tyrian White came to Pakistan and successfully obtained a court order declaring her to be his legal heir, he said.

Even then, Article 63(1)(h) implies that a person convicted for “moral turpitude” and sentenced to jail for not less than two years can contest elections if five years have gone by since his/her release”, he added.

But what happens if Imran Khan is disqualified in ths case? Another observer, senior Journalist, Ziaullah, opined that in the prevailing political turmoil in the country, he may be disqualified, but he cannot be politically eliminated.

He claimed that although administrative and judicial rulings may be used for political gain, Imran Khan’s fans will never accept this outcome. He referred to the case of another former prime minister, Mian Nawaz Sharif, who was disqualified by the judiciary but his supporters rejected the verdict. Even during the 1950s, politicians were disqualified but they could not be expelled from the political scene, he said.

He said that the role of the judiciary in Pakistan has remained controversial, and now it is the sole responsibility of the parliament to devise a mechanism whereby the politicians will not have to look to the judiciary or any other institution in order to meet their political ends.

Who are the ‘anonymous’ petitioners?

Sajid Mehmood, who filed the instant petition, has not yet appeared in any of the hearings held so far. When questioned about it, his attorney said that the petitioner is not required to be present in the court because he (the attorney) is there to represent him.

The petitioner will appear before the court as and when he is summoned, the lawyer said. He declined to share any persona information about the petitioner, saying he did not know him that much.

Pakistan Tehreek-e-Insaf (PTI) leader, Amjad Ali Khan, when contacted, said his party does not need to know who the petitioner is. He said that the sole purpose of this case was ‘mud-slinging’. He reiterated that both the ECP and the IHC had previously rejected similar requests. In the Tosha Khana case, a similar application was submitted, but the applicant has not yet been located, he added.

A member of the parliament linked to the Pakistan Muslim League-Nawaz (PML-N), Chaudhry Bashir Virk, seemed to agree with this contention when he said that such cases are a reflection of the country’s politics which “has reached a point where more and more mudslinging against each other is regarded as a measure of political success.”

Who is Sita White?

A British national living in America, Sita White taught ancient spiritual practices at a yoga studio in California. She passed away during one of her classes at the studio in 2004. She was 43.

Weeks before her death, she had received a $3 million settlement from her late father’s estate after a legal battle that spanned eight years.

Her daughter, Tyrian, was born in mid-1990s, allegedly out of wedlock with Imran Khan. Sita subsequently took legal action against Imran Khan for owning his daughter. In 1997, a court in California passed a default judgment declaring Tyrian as Imran Khan’s daughter after Mr Khan refused to take a DNA test.