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A controversial order

September 21, 2012

GONE are 11 members of the assemblies, national and provincial, disqualified yesterday by the Supreme Court for holding dual nationalities. In disqualifying the MNAs and MPAs, the court has done the right thing. In the face of a clear-cut constitutional provision barring members of parliament or the provincial assemblies from holding the nationality of another country, there is little argument for such citizens to be representatives of the people. Perhaps when the democratic process is more stable, well regarded and mature, the question of whether parliamentarians can hold the citizenship of another country can be revisited. But in the Pakistan of today, the honour, privilege and responsibility of representing the people ought to fall only to those who do not have conflicting citizenship demands. That it has taken until the very end of the terms of the present assemblies for the law to be enforced is perhaps unfortunate, but that does not detract from the reality that the decision is correct.

Having said that, there are two troubling aspects to yesterday’s short order. First, the court has once again circumvented the process of disqualification: under Article 63(2) of the constitution, the speakers of the relevant House or the Chairman of the Senate must determine whether a question of disqualification has arisen. If the answer is in the affirmative, the matter has to be referred to the Election Commission of Pakistan for a decision. To be sure, the question of disqualification has clearly arisen here and the ECP would have no real option but to disqualify the senator, MNAs and MPAs. But in constitutional matters, form and procedure can be just as important as substance. Already, in the case of the Speaker of the National Assembly ruling in favour of then-prime minister Yousuf Raza Gilani, it has been seen that the court can step in when other constitutional office holders deviate from the law. So in bypassing Article 63(2) in yesterday’s order, the court has pushed the boundaries of the constitution in an unwelcome manner.

Second, in directing the ECP to institute legal proceedings against former senator Rehman Malik because he lied to the court and so “cannot be considered sagacious, righteous, honest and ameen within the contemplation of Section 99(1)(f) of the [Representation of the Peoples] Act of 1976” is an unwelcome invocation of a controversial law. Few may lament the political demise of Mr Malik but the chosen route to punish him can prove to be the thin edge of the wedge in a country where religious invocations and the enforcement of amorphous moral standards are already crowding out the space for rational and reasonable discourse.