Though the condition of graduation is no longer in place for contesting election to the national and provincial assemblies, it continues to affect lawmakers who had in past either submitted forged degree or acquired a university degree through impersonation.
On July 23 a two-year long legal battle culminated with the disqualification of Jamaat-i-Islami MPA Malik Behram Khan, by an election tribunal in Peshawar. The tribunal presided over by Shah Jee Rehman accepted an election petition filed by the rival candidate, Sahibzada Sanaullah of Pakistan Peoples Party. The tribunal has ordered re-election in his constituency PK-93, Upper Dir-III.
Mr Behram had acquired his graduation degree through impersonation as someone else had appeared in his place in the examination. Although, the condition of graduation was not applicable in the 2013 general elections, he was disqualified on the ground that 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.
Mr Behram had applied for graduation degree before 2008 general elections in which the condition of graduation was applicable. However, as Jamaat-i-Islami boycotted those polls he did not turn up to receive the degree. During general elections of 2013 his nomination papers were rejected by the returning officer concerned, but he was allowed by the Peshawar High Court to contest polls.
When he got elected as MPA the rival candidate filed an election petition on the ground that as he had impersonated he was not qualified to contest polls. However, last year the election tribunal dismissed the petition. Subsequently, the petitioner filed an appeal before the Supreme Court. In the meantime the University of Malakand conducted an inquiry and cancelled degree of Mr Behram on the ground of impersonation observing that different persons had appeared instead of him in graduation part-1 and part-2 examinations in 2005 and 2007, respectively.
He then moved the Peshawar High Court at Swat (Darul Qaza) which upheld the cancellation of his degree on April 10, 2015. He then filed an appeal before the Supreme Court, which dismissed it and remanded the election petition back to the tribunal with the direction to decide it in the light of the new developments in the case.
The condition of graduation or equivalent qualification for election of a member was introduced by the military government of Pervez Musharraf prior to the 2002 general elections and for that amendments were made in different laws, including Representation of Peoples Act (RPA) 1976 and The Conduct of General Elections Order 2002.
In the RPA sub-clause CC was incorporated in Section 99, which 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. However, 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 Senate and National Assembly in 2009 and the said two provisions were removed from those laws.
Prior to disqualification of Mr Behram, the election tribunals in Khyber Pakhtunkhwa had disqualified some other MPAs on the same ground of submitting fake degrees.
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.
In the election petition against Yousaf Ayub, the petitioner Qazi Asad, who was a rival candidate, contended that he 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. He stated that this act was a violation of Articles 62 and 63 of the Constitution.
Similarly, 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.
The tribunal had accepted an election petition filed by a rival candidate, Makhdum Mureed Kazim, who claimed that Jawed had submitted a forged degree (sanad) of a religious seminary (madressa) along with his nomination papers during 2008 general elections. He claimed that as his was fake degree he withdrew his papers.
Furthermore, 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. The rival candidate Dr Haider Ali had claimed that Qaimos Khan had produced a forged graduation degree of Bahauddin Zakariya University Multan along with his nomination papers in 2008 general elections.
Legal experts dealing with election petitions believe that under the Constitution once a person was declared as not qualified to become a member of the parliament or provincial assembly under Article 62 (1) (f) of the Constitution for not being sagacious and righteous, he or she remained disqualified for contesting polls in future. Thus the issue of fake degree once submitted by a candidate or a member will continue to affect them in their future political career.
Published in Dawn, July 27th, 2015
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