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Who can contest elections?

Article 63 (1) (n) and (o) of Pakistan’s constitution specifically state that a person stands disqualified from standing for elections if he is a loan defaulter or a defaulter of utility bills – two sub-clauses that pre-date the eighteenth constitutional amendment. It is indeed unfortunate that it was Article 62 which itemises the qualifications for standing for elections that was the focus with most of the returning officers (ROs), especially sub-clauses that allowed them wide and, what many believe, inappropriate discretionary powers.

Recent statements by those who were party to the eighteenth constitutional amendment reveal that Article 62 of the constitution was debated but the consensus was that it was not appropriate to make changes that may fuel religious sentiments for example changes in Article 62 sub-clause (e) and (f) which stipulate that a person would be qualified to stand for parliament if he is not commonly known as one who violates Islamic injunctions and he has adequate knowledge of Islamic teachings and practices, obligatory duties prescribed by Islam as well as abstains from major sins. This no doubt accounts for many ROs asking prospective candidates to recite various surahs from memory as well as other intrusive questions that the more liberal argue should not have been asked.

Who stands disqualified is tackled in Article 63 of the constitution and few would disagree with two of its sub-clauses reproduced as follows: “A person shall be disqualified from being elected or chosen as, and from being, a member of parliament if (n) he has obtained a loan for an amount of two million rupees or more from any bank, financial institution, co-operative society or co-operative 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 got such loan written off; or (o) he or his spouse or any of his dependants 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.”

Part of the reason for the failure of several politicians to submit the required data in 2013 stems from the fact that in previous elections the two sub-clauses were not taken seriously by the ROs; and in the last elections particularly those who belonged to the party created by dictator Musharraf namely the PML (Q) simply filled out the nomination forms without feeling any compunction to present corroborating evidence. In short, these two sub-clauses were never a factor in former elections and hence the politicians did not consider them as relevant to their nomination in 2013.

However, there is a need to fine tune article 63 sub-clauses (n) and (o) to ensure that there is absolutely no ambiguity. First and foremost what requires a revisit in article 63 (n) is to determine whether it is fair to include private sector banks in this category. A politician especially from the ruling party can exert considerable influence on a national bank, and there is evidence to suggest that even those belonging to the ubiquitous establishment have easily manipulated national banks by threatening to shift their accounts to another bank, however the same technically at least can not be held true for a private bank. The word ‘technical’ was used in acknowledgement of the Mehran Bank scam; however private banks determine the viability of their own lending and investments and hence public and private sector banks cannot and should not be lumped together. Be that as it may politicians and the establishment must be barred from shifting their department/ministerial accounts from one bank to another and these accounts must be closely and continuously monitored preferably by a parliamentary committee notably the Public Accounts Committee.

Second, there is also a need for sub-clause (n) to be further refined with respect to an offspring benefiting from his parent’s decision to have a loan written-off; for example given that Gilani’s wife had a major portion of her loan from the Agriculture Development Bank of Pakistan written off should not her two sons also stand disqualified. Her spouse Yousuf Raza Gilani stands disqualified for his conviction under contempt of court in any case. This matter therefore needs to be revisited.

Thirdly and equally importantly, all banks do suffer from loan write-offs and the state of the economy can and does have an impact on the ability of a borrower to pay back the loan. Thus in the event that a business – be it an industrial/commercial/farm-related venture – collapses then the reason for the write-off may not be undue advantage by using influence but a natural demise of the business venture. And there is also a need to evaluate the collateral used by the borrower in the case of a state run bank.

Fourthly, there is a need to time bar this sub-clause. For example, there is a need to agree on whether the sub-clause should date back from 1947 and be applicable to the heirs of many a political dynasty that continues to this day or be applicable from another agreed date.

Payment of utility bills is also a sub-clause that no one would like to see challenged. However, what is disturbing is that Hina Rabbabi Khar’s husband’s large default and subsequent use of her influence that allowed her spouse to clear the massive unpaid bills in ridiculously easy instalments needs to be taken into account when approving her nomination papers.

But most of all there is a need to determine who does or does not have a national tax number and pays income tax. In this context, there is also a need to further revisit the constitutional provision that disallows the federal government to tax the income of the rich landlords. Thus income tax should be payable at the same rate for salaried and rich land lords and this must form part of Article 62 given that the ROs did not focus on Article 63.

The constitution is supreme however, it is drafted by our parliamentarians who, on occasion, allowed their own interest to prevail with respect to the constitution, and at other times the constitution was, in defiance of constitutional clauses, amended by a military dictator at a stroke of his pen, and therefore there are some flaws in the document that require a revisit. What is unfortunate is that the Rabbani-led parliamentary committee that painstakingly and comprehensively looked at the entire document and made appropriate amendments through a consensus of all parties with representation in parliament failed to deal with the concerns that are now being voiced by politicians whose nomination papers have been rejected by the ROs. One hopes that the next government deals with these concerns and ensures that further amendments are not only in the interest of a pressure group, religious or otherwise, but are designed to ensure that the discretionary elements of articles 62 and 63 are removed and replaced by precise definitions that allow for an impartial evaluation.

Anjum Ibrahim, "Who can contest elections?," Business recorder. 2013-04-15.
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