The writer is advocate of the Supreme Court of Pakistan and senior partner at Mandviwalla & Zafar
Self-criticism is becoming a Pakistani habit. Breaking with tradition, I will begin by complimenting the nation for an achievement, which has not occurred before in my life — the successful completion of a full five-year term by an elected civilian government and the voluntary handing over of the reins of power to an independent caretaker set-up. As icing on the cake, everyone is now willing to submit themselves to public accountability through the election process. When presidents of the US and prime ministers of the UK used to shake hands, accept defeat at elections and welcome their successors, I wondered if I would ever see this happening in my country. Well, it has, so congratulations again. But this dream can only be fully realised if the upcoming elections are transparent and fair.
Apart from the caretakers, the Election Commission of Pakistan, the bureaucracy and the judiciary have to play a vital role as guardians of democracy. The only blemish so far is the random use of the infamous Article 62(1)(f) inserted by General Ziaul Haq to disqualify candidates. The Article implies that a returning officer (RO) is entitled to reject the nomination papers of a candidate if he is “not sagacious, righteous and non-profligate, honest and ameen”. No definition of these words has been given, leaving the process of scrutiny open to being abused and misused. One person can appear to be ameen or righteous to me but not to another. Can we then leave this determination to the whim, fancy and mercy of an RO? With due respect, it is impossible for anyone to scrutinise nomination papers, carry out a summary inquiry without a trial and decide that a candidate’s personality is flawed and he cannot contest elections. This would not only be a violation of the candidate’s fundamental rights but also a negation of the principles of democracy where the ultimate judgment belongs to the people who have to decide whether a candidate has the qualities to be elected to parliament.
I have had the opportunity of traveling far and wide within Pakistan in the last 10 days in connection with the scrutiny of nomination papers and have witnessed bizarre misuse of Article 62, which has tarnished the image of the lower judiciary and made a mockery of the whole process.
The sad part is that while by and large ROs are acting strictly within the confines of the law, a few incidents have created mass confusion and given rise to criticism. Let me share one such incident. I heard an RO asking a candidate which hotel he had stayed in on a visit to Dubai. Then he asked the candidate if he had given any tips to the waiter when he ordered room service. The candidate’s lawyer, obviously exasperated, inquired from the judge, and rightly so, as to what is the relevancy of this query. The judge said: “I need to cross-examine the candidate to find out if he is ameen, and had you not interrupted me, my next questions were designed to ascertain whether the candidate had ordered any alcoholic beverages so that I could disqualify him under Article 62.”
With due respect, ROs do not have the power to judge a person’s qualities as a human being.
Parliament did not have the guts to delete this Article when passing the Eighteenth Amendment, but made an amendment to the effect that in order for a person not to be sagacious or ameen, there should be a judgment of a court to that effect. The idea was to take away the power of subjective decision-making from an RO, so that a candidate is disqualified only if there is a decision of a competent court in this regard. I am happy to see that Justice Mansoor Ali Shah of the Lahore High Court, apparently alarmed by the kind of questions being asked, issued directions not to conduct such bizarre inquiries. I hope that the high court clarifies, as soon as possible, that the qualities of a person mentioned in Article 62(1)(f) have to be judged by the electorate, rather than by a judicial officer. True democracy is about leaving the decision of a person being righteous to the people.
Published in The Express Tribune, April 17th, 2013.
COMMENTS (9)
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JI candidate was not able to recite the second Kalima! Secondly, what about bank defaulters like Dr. Fehmida Mirza, who has not paid any income tax despite having a large salary as speaker? What about Syed Yousuf Raza Gilani, who got his wife's huge loan of Rs. 55 million written off? Not to mention Hina Rabbani Khar, who (besides not paying off loans) paid income tax which was less than the price of her designer handbag. An honest man is not he who has memorized the Scriptures and indulged in tax evasion, but he who has not defaulted on loans, who has always paid the due income tax, who has never taken advantage of his position to enrich himself, and who is always law-abiding.
why we forget ji canadiates they are truly capable to meet 62-63 requirement
Let the people decide. No one including judges should have the right to usurp the people's freedom of choice.
@naeem khan Manhattan,Ks: Please cite a source for the detailed information you have given. The only limitations on who can be elected to congress in the constitution are as follows: "No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen."
Well and good, let the electorate decide the fate of candidates, however even in the most mature democracy like the US, there are some rules where the candidates has to abide by and submit some information to the Secretary of the State in the States they are contesting. Convicted felons can't even vote, get a passport, let alone run for elections. They all has to declare their assets and their tax returns from the Internal Revenue Service. Sure, article 62 and 63 should have been abolished long time ago, I say abolish all the amendments made by the dictators and cleanse the Constitution from these abrasions. In Pakistan, some of these candidates has made millions by corruption, some has not paid any income taxes for years even when they were in the NA and PAs, but they are running for office again and again instead of being in jails. There must be some criteria in Pakistani type of democracy where these people could be screened who perpetuate their hold on some election and fleece the treasury after they are elected , it is just business for them, they invest and then fleece the treasury and people 10 fold to get return on their investments.
Thanks a lot for a sensible and legally sound Op Ed by a scholar from ET. You are right that unless a person is proven guilty and all the legal avenues are done with he/she can be denied the fundamental right to contest elections. However, it is a norm for our country to keep Zardari in jail for over a decade without proving a single charge. Then they ousted BB from the last elections and now two of the past PM are removed from this election process by making it a selection. No other party's two top leaders are prevented from their candidacy. You end up nicely and truly "qualities of a person mentioned in Article 62(1)(f) have to be judged by the electorate, rather than by a judicial officer."
On reading this I have difficulty in accepting the logic because it is simply too ' slick ' and to me it reads like a defence of the ' same old system ' that will throw up the ' same old ' corrupt lot - Democracy by the few, for the few, in the name of the many. AS it stands today it is a One Rupee....one vote system. When it becoms a One person.....one vote system, we will be able to say that change is in the air.
Its very simple : voice of the public is the voice of God.
Is president zardari is ameen for whom the apex court is writing to swiss courts.
Some people are trying to create misunderstanding the concept is clear everyone knows the truth
"but also a negation of the principles of democracy where the ultimate judgment belongs to the people who have to decide whether a candidate has the qualities to be elected to parliament." "True democracy is about leaving the decision of a person being righteous to the people". In that case every person, even of he's a convicted criminal, should be allowed to contest elections.