The Election Commission of Pakistan (ECP) is engaged in drafting and seeking approval where required, of a set of rules for prospective candidates, some based on court decisions, for the forthcoming elections some of which are not supported by several politicians. The question why should not lead naturally to conclude mala fide intent on the part of politicians though it may not preclude it.
There has been much criticism of the court verdict on disallowing dual nationals from contesting elections or indeed being selected from reserved seats. The bedrock of the criticism is rooted in the contention that the massive inflow of remittances, the only positive element in our economy today, is a reflection of a dual national’s spirit of nationalism which must be acknowledged and supported. Does this imply that the courts and the ECP are working in a manner detrimental to the interests of those who are keeping our economy afloat?
All parliamentarians, be they from the treasury or opposition benches, as well as those politicians who did not take part in the 2008 elections and are outside the assemblies, are agreed that the constitution is supreme – not the parliament representing the peoples’ elected representatives and not the government but the constitution. And the constitution unambiguously stipulates in Article 63 (1) (c) that a person shall be disqualified from being elected or chosen from being a member of parliament if “he ceases to be a citizen of Pakistan or acquires the citizenship of a foreign state.” In short a green card holder/work permit holder that allows an individual to carry only a Pakistani passport while having the option to work in another country would, one assumes, be eligible to stand for elections. But once citizenship is acquired which entails taking an oath of allegiance over and above that to one’s native land then the individual in question is not qualified to be a member of parliament. The government has not undertaken any research to quantify remittances sent by those who hold only work permits in foreign countries. It would be safe to assume however that those resident in the Gulf countries from where a major share of our remittance income emanates (around 60 percent) are not dual nationals and simply have work permits.
In this context it is relevant to note that the leadership of our national parties including the PPP and the PML (N), never opted to acquire a foreign passport in spite of being in exile for several years – an option that they could easily exercise as most Western countries require a certain minimum amount of investment to qualify for a work permit that, after a specific period of time can be converted into full citizenship. Thus Benazir Bhutto, President Zardari, Nawaz Sharif, Shahbaz Sharif, never opted to acquire the nationality of a foreign country. And this is in spite of the fact that there was considerable evidence of political victimisation where Benazir Bhutto and her family as well as Nawaz Sharif and his family are concerned. Imran Khan could have applied for British nationality, based on his marriage to a British national but again he did not opt to do so. In other words, the leadership of all mainstream parties with a popularity rating of more than 10 percent opted not to seek dual nationality.
It is the second and third-tier leadership of these parties that opted for dual nationality. The names of some are known as they stand disqualified by the courts with the ECP having sent them the appropriate notification. However there are some dual nationals who are not known and Rehman Malik as well as a former PPP favourite Babar Awan, now in the political wilderness, periodically threaten that they will reveal the names of all dual nationals however neither has made good on his threat so far. What is the process and the government agency that has the capacity to determine whether any parliamentarian is a dual national or not, remains unclear. So this particular clause of the constitution can be implemented only if there is a whistle blower, and in a country ruled by a party whose decisions are made public even before the meeting where the decision was made has not ended, silence on this matter indicates that not revealing the names is the favoured policy across the political divide. The second and third tier leadership must be protected to preserve the party’s parliamentary strength.
The ECP will also have to grapple with some other clauses of the constitution to ensure that prospective candidates are approved as per the constitution. The constitution’s most controversial clause is Article 62 (1) (d) (e) and (f). These clauses are reproduced below and pertain to an individual not qualified to be elected or chosen (reference to reserved seats) as a member of parliament:
Article 62 (1) (d): “he is of good character and is not commonly known as one who violates Islamic injunctions.”
Article 62 (1) (e) “he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins.” Article 62 (1) (f): “he is sagacious, righteous, non-profligate, honest and ameen, there being no declaration to the contrary by a court of law.”
The constitution fails to define or quantify ‘good character’, ‘major sins’, ‘sagacious’, ‘righteous’, ‘non-profligate’, ‘honest’ and ‘ameen’. Making a wrong declaration in terms of assets or taxes/utility bills or indeed one’s level of education to the ECP would of course not be honest. Be that as it may, politicians from all parties legitimately expressed concern over the possibility of abuse especially by a dictator who may disallow politicians opposed to his rule from participating in elections by declaring them as possessing one or the other of the characteristics not clearly defined above. The fact that dictator General Ziaul Haq was the one who amended the constitution to include these attributes as necessary qualification for contesting elections shows the validity of the concerns voiced by politicians. However why the eighteenth amendment that took over a year in the drafting did not tackle these particular sub-clauses reflects a serious failing on the part of the Raza Rabbani-led parliamentary committee and one would hope that political parties do join hands to amend these sub-clauses of article 62 when a new parliament is elected.
Article 63 however does define the basis of some disqualifications. First, any one convicted in a court of law is barred from contesting for “propagating any opinion, or acting in any manner prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or the integrity or independence of the judiciary of Pakistan or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan, unless a period of five years has lapsed since his release.” Former Prime Minister Gilani has been disqualified on this basis and need one add the PTI Vice President Javed Hashmi spent time in jail during the Musharraf era for defaming the army for what many believe was legitimate criticism of actions taken by former President Musharraf in Kargil. The judiciary is a pillar of state and hence ensuring its integrity and independence is integral to democracy; however, the army is not a pillar of state and from the perspective of the constitution comes under the executive hence it is baffling why this particular component of the clause of the constitution was not amended by the Rabbani-led committee.
Article 63 (n) and (o) specify that a person is disqualified to be a member of the assembly if he “has obtained a loan for an amount of two million rupees or more from any bank, financial institutions, co-operative society or cooperative body in his own name or in the name of his spouse or any of his dependants which remains unpaid for more than one year from the due date or has got such loan written off, and he or his spouse has defaulted in payment of government dues and utility expenses including telephone, electricity, gas and water charges in excess of ten thousand rupees for over six months at the time of filing his nomination papers”. The example that stands out is that of Hina Rabbani Khar’s husband who owes crores for unpaid electricity bills however her cabinet colleague Ahmed Mukhtar reportedly approved a long term repayment plan that makes a mockery of disconnection notices to the common man for not clearing bills under 10,000 rupees. Gilani is disqualified for contempt but his wife got her loan reduced to less than half from the Dogar court.
To conclude, there is a need for the next parliament to define or discard those clauses of the constitution that cannot be defined except arbitrarily and to proceed against those who abused the system since democracy got a foothold again in the country namely from 2008 onwards.Business recorder, "Dual nationality," Business recorder. 2013-03-04.