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Mischief is afoot

January 31, 2013


“Now let it work. Mischief, thou art afoot, Take thou what course thou wilt!” — Shakespeare

THE ungainly and unnecessary controversies over arrangements for the general election and the arguments being advanced by the various actors bode ill for Pakistan’s fitful experiment with democratic governance.

The way quite a few veterans of opportunistic politics are trying to appease the Canadian maulana is sickening, to say the least. Whatever accord was negotiated between him and the government parties is not binding upon the people, especially the provisions that are in conflict with the constitution.

Maulana Qadri’s claim to dictating constitutional amendments is hit by the Supreme Court ruling that bars holders of foreign countries’ citizenship from taking part in legislation and policymaking. He is free to express his opinions but these carry less weight than the views of any ordinary Pakistani citizen who has no extraterritorial loyalties, and whose normal vision refuses to accept the presence of four million people in Islamabad’s ‘D’ chowk.

Unfortunately, some eminent persons have supported the wild call for reconstitution of the Election Commission of Pakistan (ECP) that has now largely met the decades-old demand for an independent and democratically constituted election authority. A brief review of its evolution will be in order.

The 1956 constitution had provided for a permanent ECP, headed by a chief election commissioner (CEC) and as many members, called election commissioners, as the president decided. They were to be appointed by the president for five-year terms and the selection was not limited to judges.

The Ayub constitution destroyed the permanence of the ECP and made the CEC the overall election boss for a three-year term. An election commission was to be created for each election by appointing two serving judges, one from each wing’s high court, after consultation with the chief justice concerned.

The 1973 constitution retained the Ayubian scheme. The chief election commissioner was a permanent head of the election commission for a three-year term. A condition of his being a judge, serving or retired, was introduced. Two serving high court judges were to join him and form an election commission for each election. The judges were chosen by the president after consultation with the chief justices concerned.

This arrangement was assailed on several counts. First, the condition that the CEC and other members of the commission had to be judges was not justified by democratic considerations. The secondment of serving judges to the election commission was especially questionable. The temporary arrangement for each election did not meet the need for a permanent commission which has a lot to do between consecutive elections. And nobody liked giving the president the sole authority to appoint the CEC and the ECP members, especially when he did so at his discretion.

Thanks to the 18th Amendment the ECP is now a permanent body, comprising a CEC, who is no more the sole boss, and four retired judges. The power to select them has been taken from the president and given to parliament. One point, fixation of the tenure for ECP members, had been left out, although the CEC’s term had rightly been raised to five years. This omission has been made good by the 20th Amendment by also allowing ECP members a five-year tenure. This is the best arrangement that we have ever had.

Now an objection has been raised that the selection of the ECP members was not in accordance with the constitution. There is little force in this view. The selection of the ECP members is said to have received the approval of the ruling coalition and the opposition party. At least no objection was raised during the intervening months. If military regimes can be legitimised by political parties’ acquiescence the ECP members have a much stronger case for approval. Even if there has been a legal/technical lapse it should be considered covered up by the state’s need to avoid any delay in holding the general election. No more needs to be said about the ECP.

Much greater mischief is being spread by attempts to sanctify Gen Zia’s additions to Articles 62 and 63 of the constitution. The idea that 30 days should be set apart for judging candidates’ eligibility under Article 62 is not only preposterous, it will gravely undermine the country’s transition to democracy.

Under the 1956 constitution anyone who was 25 and registered as a voter could contest election, unless otherwise disqualified. There was also a bar against dual memberships. The 1962 constitution had five grounds for disqualification. i) holding an office of profit; ii) undischarged insolvency, iii) recent imprisonment for moral turpitude; iv) acquisition of a foreign nationality; and v) disqualification under any other law.

The 1973 constitution laid down (Article 62) a four-point criteria; i) citizenship; ii) qualifying age; iii) enrolment as voter; and iv) other qualifications laid down by law. It also spelled out (Article 63) five grounds for disqualification; i) mentally challenged; ii) insolvency; iii) loss of citizenship or acquisition of a second nationality; iv) holding of an office of profit; and v) disqualification under a law.

Gen Zia greatly enlarged Articles 62 and 63. While there has been a considerable debate on (and application of) the disqualification clauses of Article 63, not enough attention has been paid to Zia’s mutilation of Article 62. Under the amendments made by him a candidate must prove that:

— He is of good character and is not commonly known as one who violates Islamic injunctions;

— He has adequate knowledge of Islamic teachings and practises obligatory duties prescribed by Islam as well as abstains from major sins;

— He is sagacious, righteous and non-profligate and honest and ameen;

— He has not, after the establishment of Pakistan, worked against the integrity of the country or opposed the ideology of Pakistan;

Provided that the disqualification specified in paragraphs one to three shall not apply to a person who is a non-Muslim, but such a person shall have good moral reputation.

The allocation of 30 days for testing candidates on the Zia criteria will not only delay decisions and cause confusion as a result of subjective application of intangible tests, it will destroy the democratic spirit of elections.

The representatives of the people are not required to be subject specialists or religious scholars; they are only required to be capable of voicing the people’s concerns and prioritising their needs. Turning legislatures into theological seminaries is contrary to Iqbal’s concept of ijma by a general body of Muslims and not by clerics alone.

Democratic assemblies work on the principle of unity in diversity; if filled with good persons of Ziaul Haq’s definition they will not reflect the pluralist nature of the Pakistan society. There will be no room for multi-party democracy and Pakistan will degenerate into a one-party state.

Gen Zia’s handiwork was roundly rejected by democratic sections of society when it was executed. Nothing has happened since to justify its acceptance now. Those who surrender to Zia’s ghost will not be forgiven for destroying Pakistan’s fledgling democracy. They will also be disowning the sacrifices the people of this country have borne while resisting dictatorship in various forms.