By: Yasmeen Ali
The election of the “right” man(or woman), much as one seeks in a marriage, is the first stone to the erection of a relationship. If those contesting for representing a nation either at the provincial or federal level, lack the qualities much needed to undertake the responsibilities after being elected, nothing can be more disastrous. We have made a choice that must only lead to catastrophic results. Worse, once we’ve made our bed, we must lie on it!
What if the criteria to elect the person itself creates a hurdle?
Any Constitution, worth its salt, must be elastic, to be able to adapt to different times, it must be timeless, it must be carefully worded so that it is not redundant, and choice of words must not be based on expressions impossible to pin down for all to agree upon. Inclusion of subjective words transcend the boundaries of legal definition and are open to misinterpretation and confusion.
Article 62 of the Constitution of Pakistan was washed, spun in the washing machine, to emerge, dressed in subjective words-a brainchild of Gen. Zia, then injected in the Constitution, alas, for it never to revert again to its original form.
It focuses on qualities, admirable no doubt, but subjective in interpretation, like a person wishful of contesting elections, must be “sagacious, righteous and non-profligate and honest and ameen”. However, how can such subjective terms be translated into a legal parameter and applied on individuals in a court of law? Different people will have different levels of measuring these qualities. But arriving on one level of measure, one context of application, one meaning of the term is virtually impossible.
These and other equally subjective treatments given to Article 62 was included via Presidential Ordinance No. 14 of 1985. The original Article was a simple piece of legislation:
Qualifications for membership of Parliament.– A person shall not be qualified to be elected or chosen as a member of Parliament unless:
(a) he is a citizen of Pakistan,
(b) he is, in the case of the National Assembly, not less than twenty-five years of age and is enrolled as a voter in any electoral roll for election to that Assembly;
(c) he is, in the case of the Senate, not less than thirty years of age and is enrolled as a voter in any area in a Province or, as the case may be, the Federal Capital or the Federally Administered Tribal Areas, from where he seeks membership; and
(d) he possess such other qualifications as may be prescribed by Act of Parliament.”
Or was it really the end? The new criteria laid down by Zia, was the beginning of an era, based on electing representatives on qualities, no doubt sought in a good human being, but neigh impossible to measure by legal standards, or any standards for that matter. He left for us a Constitution, that is confusing ,detailed and makes sure, it leaves doors wide open for all kinds of interpretations. The word subjective is defined as:
“pertaining to or characteristic of an individual; personal; individual: a subjective evaluation”.
There are many elements that need a mention in Article 62 but have somehow escaped the attention of our lawmakers. Should not a prospective contestant have onlyPakistani nationality? Should not a prospective contestant declare all his assets and have 50% minimum assets in Pakistan? Should not a prospective contestant declare his taxation paid for past immediately preceding 10 years(at least)? Should not a contestant be a minimum graduate?
How can the people of any nation elect a leader who defaults on taxation? How can the people of any nation elect a leader with no stake in a country he purports to lead? How can the people of a nation elect a leader with dual nationality thereby leading to conflict of interest? How can the people of any nation elect a leader with no education?
In Pakistan. As the Constitution lays down no such demand.
Till such time that the Constitution takes into consideration the needs of the people, Pakistan will continue failing in electing the “right” leader! For how long, Pakistan will continue electing her representatives on laws that ignore the ground realities and are based more on subjective analysis?
This brings me to the application of this very law by the Supreme Court, to the person of Prime Minister Gilani in the NRO judgment, announced on 10th January 2012. The order stated,’ Prima Facie the prime minister is not an honest man and violated his oath.’ http://www.pkcolumns.com/2012/01/10/supreme-court-reserves-judgement-in-nro-implementation-case/
This does not mean to say, any one flouting Supreme Court directive not be questioned. What it does mean is, we must continue scrutinize our laws to evaluate their applicability to a living society. Laws are for people, people are not for laws.
Lao-tzu in “The Way of Lao-tzu” states, ”The more law and order are made prominent, the more thieves and robbers there will be”.
I think I am talking about a 2oth Amendment-or something!
NOTE: The article is drawn from a paper submitted to PESA(Pakistan Ex-Servicemen Association) by the author in January 2012. Only reference to Supreme Court judgment declared on 10th Jan. 2012 is added in.
The writer is a lawyer, teaching in a University in Lahore. She may be reached at:email@example.com