Before the general elections of 2002 the then military government of General Pervez Musharraf had introduced the condition of graduation or equivalent qualification for a contesting candidate.
While that condition is no longer applicable, but still lawmakers continue to be affected by it if they had in past either submitted fake degrees or had someone impersonate them in the relevant examinations.
Recent victim of the graduation condition was a member of the Khyber Pakhtunkhwa Assembly, Mian Ziaur Rehman, who was disqualified by a two-member bench of the Peshawar High Court on Mar 14. Mr Rehman was elected as an MPA from PK-54, Manshera II in the 2013 general elections on ticket of Pakistan Muslim League-N.
The bench comprising Justice Waqar Ahmad Seth and Justice Muhammad Younas Taheem allowed three identical writ petitions filed by some voters of the said constituency.
The petitioners had contended that Mr Rehman had been declared as returned candidate during the 2013 general elections but he was not honest, ameen, righteous, sagacious, non-profligate person within the meaning of Article 62 (1) (f) of the Constitution of Pakistan.
They stated that in 2008 general elections while filing his nomination papers Mr Rehman had declared himself as a graduate on the basis of a sanad of a religious seminary from Ghotki (Sanad-ul-Faragh Shahadatul-Alia) whereas in the 2013 general elections, he declared himself as a matriculate.
The issue of Mr Rehman not being honest and righteous continued to linger on since the holding of the general elections in 2013. First, a rival candidate had filed an election petition against him before an election tribunal on the same grounds. The election tribunal had accepted the said petition on Oct 23, 2013, and disqualified him.
Mr Rehman had moved the Supreme Court against the said judgment, which set aside the verdict of the tribunal on some technical grounds without discussing merits of the case.
The high court bench has ruled that the returned candidate in his nomination form for general elections of 2008 declared himself to be a graduate, while in the nomination form for succeeding general elections of 2013, he had declared himself as matriculate and that both these forms if juxtaposed would result in his disqualification.
For introducing the condition of graduation for candidates, amendments were made in different laws, including Representation of Peoples Act (RPA) 1976 and The Conduct of General Elections Order 2002.
In the Representation of Peoples Act amendments were made in section 99 and a sub-clause CC was incorporated in it. That sub-clause provided that a person should not be qualified to be elected or chosen as a member of an assembly unless he is at least a graduate, possesses a bachelor’s degree in any discipline or any degree recognised as equivalent thereto by the University Grants Commission (later on the Higher Education Commission) under the University Grants Commission Act, 1974 (XXIII of 1974), or any other law for the time being in force.
Almost similar provision was introduced in the Conduct of General Elections Order by including Section 8A in the law.
The general elections of 2002 and 2008 were conducted in the presence of the said provision. Several elected members were disqualified by competent judicial forums after the 2002 and 2008 general elections as they had either possessed fake degrees or sanads or their sanads of religious seminaries were not equivalent to graduation.
The Supreme Court of Pakistan on April 21, 2008 declared as void Article 8A of the Conduct of General Elections Order 2002 and Section 99 (CC) of the RPA, on account of their being inconsistent with certain provisions of the Constitution. In the light of said judgment the Election Laws (Amendment) Act 2009 was passed by the Parliament in 2009 and the said two provisions were removed from those laws.
While those provisions are no longer applicable, but those candidates who had submitted forged or fake degrees and that was proved against them are no longer considered righteous or sagacious and would continue to face this disqualification for life.
On July 23, 2015, an election tribunal in Peshawar had disqualified an MPA of Jamaat-i-Islami Malik Behram Khan and had ordered re-election in his constituency PK-93, Upper Dir-III.
He was disqualified on the ground that he had acquired his graduation degree through impersonation as someone else had appeared in his place in the examination. As he had acquired degree through impersonation he was not ‘Sadiq and Amin’ (righteous and honest) in terms of Article 62 and 63 of the Constitution dealing with qualification and disqualification of a lawmaker. The judgment of the tribunal was upheld by the apex court.
Prior to him, in Sept 2013 an election tribunal in Abbottabad had disqualified a leader of Pakistan Tehreek-i-Insaf and then provincial minister for communication and works, Yousaf Ayub, for holding a fake graduation degree. The verdict of the tribunal was upheld by the Supreme Court in Nov 2013 and subsequently by-elections were held in PK-50 Haripur in which his brother Akber Ayub got elected.
Mr Yousaf Ayub had submitted a BA degree of the University of Punjab while contesting the general election in 2002, but in the 2013 polls he showed his qualification as intermediate.
Later on, in Dec 2013 an election tribunal had disqualified independent MPA Jawed Akber Khan and ordered re-election in PK-68 Dera Ismail Khan in Dec 2013. The apex court had upheld that verdict and by-elections were held there in 2014.
He was disqualified on the ground that he had submitted a forged degree (sanad) of a religious seminary (madrassa) along with his nomination papers during 2008 general elections. As he was a fake degree holder, therefore, he had withdrawn his nomination papers.
In similar manner, a PML-N MPA, Qaimos Khan, was de-seated by a tribunal in Jan 2014 and re-election was ordered in his constituency PK-86 Swat-VII.
He had produced a forged graduation degree of Bahauddin Zakariya University Multan along with his nomination papers in 2008 general elections. The Supreme Court had also upheld the verdict of the tribunal.
Legal experts believe that disqualification of a person under Article 62 (1) (f) affects a candidate for his or her entire life. Once a candidate or a lawmaker is declared not righteous or honest, the said disqualification is applicable to every future election.
Published in Dawn, March 27th, 2017