Is anyone ‘sagacious’ and ‘ameen’?
No definition of 'sagacious' and 'ameen' has been given, leaving process of scrutiny open to being abused.
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.
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.