Whom does the Constitution serve?

This is a Pakpotpourri Exclusive

Yasmeen Ali   

The purpose of elections, both at provincial and national levels, is aimed to bring to fore, duly elected representatives of the masses. However, these representatives  must subscribe to certain standards. Unfortunately, Article 62 and 63, that deal with the qualifications and disqualifications of a person aspiring to become a Member National Assembly and Member Provincial Assembly  of Pakistan are so subjective and defective in interpretation and application- it can only be translated, that the writer of these laws must have been as ignorant of law as those who approved it.  http://www.mofa.gov.pk/Publications/constitution.pdf

If we read Article 62,the qualifications required,therein, are purely subjective in nature,  ie having “adequate” knowledge of Islamic practices, self-righteous, never having violated any Islamic Injunction., abstains from major sins…….the list is long.

The Article is purely subjective. Who will judge whether or not the knowledge of an aspirant to the seat(s), has or has not adequate knowledge of Islamic practices. This requirement leaves the door wide open for all kinds of  interpretations . The other question it raises is, can anyone claim ,ever, to have adequate knowledge of Islamic practices in light of the different interpretations by different sects within Islam? In English Dictionary , the word adequate is described as “sufficient to satisfy a requirement or meet a need”. Who will, determine what is sufficient to meet the need? What is the barometer to judge this level? The second contradictory word is knowledge. Oxford English Dictionary defines it as ,”expertise and skills acquired by a person through experience or education, the theoretical or practical understanding of a subject”. The question here is, a degree, in a subject may be considered a proof of a “theoretical knowledge”, how will one judge the “knowledge gained through experience”? Definition of knowledge equally respects that acquired by theory(education) and that acquired by experience.

The term “self righteous” is defined as,” exhibiting pious self assurance”.  Excuse me?

Article 62 is full of similar like subjective words that fail a legal mind in terms of interpretation to translate into application.

But this is not all. The Constitution is silent on the question, that should an aspirant , get elected, falsely projecting to fulfill the requirements laid down in the Article, what are to be the consequences, if exposed? Should the Election Commission forthwith declare his election null and void? Should he, in addition be subject to a fine? A sentence? Or both?

The Constitution is also silent, that should the elected person, fall below the required standard (the standard itself being subjective), after elections,should the elected representative face the same fate of one who may have falsely projected himself to get elected?

The Constitution leaves everyone to make their own deductions.

Article 63 that lays out rules for a person standing disqualified from running elections is no less confusing. The person stands disqualified on assorted grounds, including, if he has been convicted on grounds of corrupt practices, moral turpitude or misuse of power among other issues.

Misuse of power is defined as,” to use incorrectly”. This definition is broad based & applies to any elected person giving a “chit” of recommendation to embezzlement, and all shades of misuse in between and beyond.

Definition of moral turpitude states,” Moral turpitude refers generally to conduct that shocks the public conscience. Offenses such as murder, voluntary manslaughter, kidnapping, robbery, and aggravated assaults involve moral turpitude.” However, the examples stated here, are examples only. The bottom line is anything shocking public conscience.

In case the readers are wondering, why the definitions, and why these details, permit me to state that this is to highlight the impossibility of the law and equal impossibility of it’s application.

Article 63, like it’s sister article 62 is silent as to how to deal with an elected representative should he have hidden the grounds that disqualify him from holding the position in the first place or he acts in this manner, after being elected, to stand disqualified from holding the position.

The salient features or pre-requisites that should have been a part of Article 62 and Article 63 are conspicuously missing.

Missing is the requirement for the aspirant to be a single nationality holder ie a Pakistani ONLY. Though the law clearly states the aspirant must hold a Pakistani nationality, no where is it stated that the aspirant can be debarred from contesting should he have more than one nationality. The rule of law should begin with those who make the law to rule. Dual nationality has inherent dangers. It can and does lead to conflict of interests. South Central St Catherine Member of Parliament, Sharon Hay-Webster, served with court papers for having dual citizenship by the Court. The Court had ousted four Jamaica Labor Party Members of Parliament because there were found to hold dual nationality at the time of their nomination in 2007. According to The Nation dated 23rd Feb. 2011, the Election Commission of Pakistan had decided to suspend membership of those parliamentarians who had dual citizenship. However Dawn of 1st March 2011 in a report by Khawwar Ghumman reported that the government remained silent on the fate of parliamentarians having dual nationality.

Missing also is the prerequisite that aspirants must not have business and assets in terms of properties outside of Pakistan. Does this lead to conflict of interests?

Missing also is an important  requirement that an aspirant must declare his assets and with it, complete updated taxation history. According to a report by Dawn dated 13th March 2011, there are several politicians who may have even more money but have not declared their assets. (http://www.dawn.com/2011/03/14/affluent-politicians.html). There is nothing in Article 62 and Article 63 that may disqualify them on this ground from holding their seat.

Abraham Lincoln  once said,” Do not interfeare with anything in the Constitution. That must be maintained for it is the only safeguard of our liberties”.

I am sure, he could not have stated the same for our Constitution.

By:Yasmeen Ali

The writer teaches in a Lahore based University. You may visit her SITE : https://pakpotpourri2.wordpress.com/

 

Advertisements
Post a comment or leave a trackback: Trackback URL.

Comments

  • A.H.Amin  On April 2, 2011 at 8:55 am

    a constitution which does not allow army personnel the basic human right to go to civil courts as they enjoy in india needs change .this is basic flaw in the pakistani constitution

  • ID  On April 2, 2011 at 9:04 am

    Absurdity abounds & therefore this is just one aspect of it. This only and truly reflects the frailty of human mind and character. If I were to have anything to with it, I should scrap the whole thing and make the constitution so objective that only few pertinent points would be retained. Just as an example: Union councils will be the fundamental unit of association which would be recognised at the state level, and 10 contiguous Union Councils will comprise a district from where a member of the provincial assembly will be elected. 20 Union Councils will comprise a unit for electing a national/federal assembly member. A senate member will be elected from 40 contiguous Union Councils. Such should be the articles and then we can define other such details for interprovincial harmony and federation’s responsibilities. This was just an example.
    The first article however, ought to be: This nation, which under Allah’s blessings came to be formed on the basis of willingness to live together by the great word of the Creator as given by Him through His last and perfect revelation, the Quran, hereby solemnly affirms to take that as its injunction and adopt it as the ‘Constitution of the Republic of Pakistan’ comprising of the federating units Azad Kashmir, Balochistan, Khyber Pakhtunkhawa, Punjab & Sindh.
    All laws shall be interpreted in the best judgment of the interpreter being guided by the Book of Allah & His prophets’ examples and the innate wisdom granted to man.
    This is just an extempore’ outpouring but the term constitution should be reserved for the Quran only & the Bill of Federation should be objective and so few practical objective articles that any ordinary citizen must gain easy familiarity with and ownership of it.
    idrees

  • Ayesha Khan  On April 2, 2011 at 11:05 am

    Brilliant Yasmeen. The Constitution serves and protects the Elite and the feudals Reminds me of Faiz’s poetry “Banay hain ahle hawas mud’ai bhi, munsif bhi; kisay wakil karein, kisay munsifi chahein” from “Nisar Mein Teray Galyon Kay ay Watan”…

  • Masud  On April 2, 2011 at 1:37 pm

    If we read Article 62,the qualifications required,therein, are purely subjective in nature, ie having “adequate” knowledge of Islamic practices, self-righteous, never having violated any Islamic Injunction., abstains from major sins…….

    These ‘Islamic’ clauses were inserted by our great Islamist ruler Zia ul Haq, on the advice of one of the greatest legal brains of the country, AK Brohi. I say this because Mr Brohi himself told me that in 1980. Zia had also appointed Nazim-e-Salat to report on persons in their areas of responsibility. Some anti Zia’s Islam sabotaged that system. Raza Rabbani found it necessary to strike at HEC because it had gotten out of control. He did not find it necessary to strike at these Clauses. So he should be asked to bring back Nazim-e-Salaat to make these Clauses effective.

  • Saqib Khan  On April 2, 2011 at 1:43 pm

    In the United Kingdom, every prospective parliamentary candidate is thoroughly and intensely vetted by his/her political party’s local constituency offices for any previous wrong doings and for any criminal record, and if they are fully satisfied, then he/she is selected to represent their constituents.

    And when they become members of the parliament, they are obliged to submit their financial statements annually to be audited and if any irregularities are discovered by the auditors, they are prosecuted by the police for criminal offence/s and if found guilty by the court; they are expelled from the House of Commons and banned for life by their political party.

    In the United Kingdom and most of the western countries, a member of the parliament does not need to be a university graduate or a higher qualifications but he/she needs to have exceptional abilities, capabilities and professional experience and skills to justify their eligibility in the parliament. He or she could be a social worker, miner, union leader, lawyer, banker, solicitors, academic or from any other profession but a candidate must have a CV that justifies fully his application.

    In Pakistan, it is the money and privilege that does the talking because Pakistani lawmakers are also the biggest manipulators of the law when they write it and the biggest violators after they had passed it.

  • pakpotpourri2  On April 2, 2011 at 1:46 pm

    Well stated. A comment here about education: our parliament has been cluttered with “angootha chaaps”, it was later, by an Ordinance by Musharraf that a minimum requirement of graduate degree was introduced. In the western Parliament we do not see the trend of virtual illeterates making it to Parliament.
    Moderator

  • Ahmed  On April 2, 2011 at 1:50 pm

    It serves only elites,it is for rulers and protects rulers including army.It never provides any outlet fro oppressed masses of the country.In 63 years no body from masses can dream to contest elections.Peopel like Zardari,Gilani,Rehman malik,Ch shujaat,Nawaz,Parvez were given all fcailities to rule with impunity.Most of them dont know kalima tayyaba but ch iftikhar can not take suo moto.Almost 2/3rd parliamentarian sdont know basics of five times prayers but court can not do any thing becaus e when it comes to knowledge and virtues than they feel we are in the same swimming pool.
    AAS

  • Haroon Wasti  On April 2, 2011 at 2:15 pm

    Just One point submission with humility :

    The people with dual Nationality :

    The Expatriates send the life line to Pakistan. Ten Billion Dollars per year. Many of these workers after a lot of hardship obtain the nationality in their host country to work with ease and earn money for Pakistan.

    Refuse that money first from these expatriates and then only inpose that condition of declaring them as 2nd class citizens, debarring such people with dual nationality to deny standing for an office in Pakistan.

    Why this condition ? just because you can not really investigate and catch hold of real dodgers ? So you want to punish ALL the good people too ?
    SHW

    • Yasmeen Ali  On April 2, 2011 at 2:18 pm

      It is most interesting when everyone wants to become a lawyer in this country.
      We are talking of those contesting elections . The expatriate will have to come here,contest & stay put,no?
      YAA

  • Hasan Abbas Jafrey  On April 3, 2011 at 4:18 am

    Well written article. This constitution is for the fuedals, by the fuedals and of the fuedals. Therefore, it serves only the elite and feudal lords.

  • Admiral Sirohey  On April 3, 2011 at 5:46 am

    Not the people. Certainly those who enter that sacred building. Their Istehqaq is injured even if some one crosses bow. Lincoln has assured them the liberty. They may enjoy that liberty to the extant they may deem it fit. The assume the station of super human

    IAS

  • Shokat Ghulam  On April 3, 2011 at 11:18 am

    Yasmeen, somebody said laws are enacted to be broken. That is why every law has a punishment be it custodial, fine, or whatever! And perhaps that is why we have the lawyers and solicitors! But some of the law makers are “angootha chaaps”, I agree.

    • Saqib Khan  On April 3, 2011 at 11:18 am

      Shokat: Law makers should not be ‘anghoota chaaps’ but most certainly majority of our parliamentarians could be law breakers. Is it true that even now majority of our parliamentarians are ‘anghoota chaaps.’

  • Parvez Amin  On April 3, 2011 at 11:51 am

    Since citizens, using current IT can now give their views directly without the need for representatives, we will need to make many changes to the constitution.

    Because of this, there will be no need for representatives, hence we should be spending our time working on that instead of wasting it on a system that has brought us to our presnet sorry state.

    My political party, Madadgar Pakistan is working on such a system and isendeavoring to introduce it. Our website will be up soon with much detail.

    • pakpotpourri2  On April 3, 2011 at 1:06 pm

      I missed this one-you mean IT will take the place of representatives??????

  • Khan Zia  On April 3, 2011 at 2:50 pm

    Thanks. It is naive to think that the US govt. is oblivious or powerless to stop CIA from undermining the US military. This game has been played for as long as one can remember. In the past our generals were flattered when told that the Pentagon appreciated and highly valued what Pakistan was doing for the US, in particular her armed forces. It was just that civilians at the State Dept. did not understand. Here CIA has taken the place of the State Dept. nothing more. They are all working for the same end —- always have and always will. To believe anything different is puerile.

    The drones that have indiscriminately killed thousands of innocent Pakistani men, women and children and continue to play havoc with the lives of people in FATA operate from bases provided by Pakistan and with the permission and cooperation of her govt. and the armed forces. In the face of this, can anyone be realistically expected to take it seriously if Gilani, the Governor of PK or Kayani declare these as ‘unjustified and intolerable’ —- particularly after what appeared in the Wikipedia leaks? In situations such as these what anyone says matters little; it is what they do which is important.

    If you want to take a measure of US policy towards Pakistan take a look at the end result of what they have been and are continuing to do to her and not go by what Admiral Mullen tells General Kayani. All the signs are neither reassuring nor sanguine. There is a fundamental clash of interests between the West and Pakistan. They will do what they have to in order to achieve their ends. If Pakistan is compliant, placating and subservient in the face of western demands it will change nothing, except to make their job that much easier for them.

  • Freda Shah  On April 3, 2011 at 7:30 pm

    As soon as “Islamic clauses” are written and inserted in any document by human -beings, they immediately cease to be wholly Islamic. The words and comments of human-beings, in particular bigoted and self-righteous human-beings, always lead to endless controversy and confusion.
    There is no compulsion in Islam, neither does Quranic Islam advocate dogma or dictatorship or suppression of individuality.
    The clauses in question are aimed at creating a herd mentality, so that the masses can be controlled and manipulated by well-entrenched elites with impunity.

    • Ahmed  On April 3, 2011 at 7:31 pm

      Kindly remember that it never applies on army dictators may they be like sof Yhya the debaucher or Parvez the pappi.
      AAS

  • jawad  On April 5, 2011 at 9:40 am

    The only road to success for Pakistan, goes trough middle class educated leadership. You have amply covered the problem areas regarding constitution but only capable people can address it. ONLY SOLUTION THE MIDDLE CLASS. Must convince one person each day to vote at least.

Trackbacks

  • By Eric S Brown Parking on October 6, 2011 at 9:32 am

    Online Article……

    […]The information mentioned in the article are some of the best available […]……

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: