By Yasmeen Aftab Ali
In changing key points in the Constitution of 1973 of Pakistan, General Zia created a legal framework inundated with subjective terms that defy legal definition and has led to many cases in courts. These terms have created confusion and are open to interpretation and to be used against any candidate if so desired.
According to Article 62 (d) (e) (f) (g) of the Constitution, “he is of good character and is not commonly known as one who violates Islamic Injunctions; he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins; he is sagacious, righteous and non-profligate, honest and ameen, there being no declaration to the contrary by a court of law; and that he has not, after the establishment of Pakistan, worked against the integrity of the country or opposed the ideology of Pakistan.” Do not these subjective terms open a Pandora ’s Box allowing a space to make determinations positively putting a huge majority of Pakistanis ineligible to contest elections? Or be used by leading party against the opposition?
There is a conflict of opinion among Ulemas as to what is a violation of Islamic Injunctions. Is listening to music or keeping a dog as a pet a violation? It is not clear who makes the determination as t0 how someone is not commonly known as one to violate Islamic Injunctions. How does one determine a “candidate is of good character” and is not commonly known as one who “violates Islamic injunctions?” Is praying five times a day conforming to the Islamic Injunction or one must wear a beard with it? What proof is required to satisfy the standards set? Will Ulemas belonging to different schools agree on the criteria set?
Subjectivity is followed by more subjectivity by using terms like “adequate knowledge”, “obligatory duties” and “major sins.” Who defines what is adequate? What is the barometer? How does one define obligatory duties and major sins? Or will the candidate be allowed to fulfill the criteria laid down by the school of thought they belong to as per their Ulemas provided all within the fold agree on one standard.
“Few events shared on media and social media related to candidates were; Owais Tappi of PPP was questioned about the names and timings of the five prayers, Nabil Gabol of MQM tweeted that “Returning officer ka sawal k aap sadiq aur maeen hain? I am getting class for that am I sadiq and ameen according to Articles 62 and 63”. “Sadiq and Ameen” righteous and honest” were the titles given to Prophet Muhammad (PBUH) by the people of Mecca.” (Excerpt)
There are important provisos that should have been there but were not included, even later. “The first conflict is the right exercised by a large percentage of leaders, including Members of Parliament, to maintain dual citizenship.” (Excerpt)
Should politicians be allowed to hold dual nationality?
The word “allegiance” means that we promise loyalty. It also carries with it the expectation that this loyalty will be exclusive and unrestrained. In the case of a declared war or real threat or conflict, for example, our allegiance to Pakistan should preclude any other interest, be it another country or political ideology. Since citizenship carries with it a responsibility to be exclusively loyal to one country, the whole concept of dual citizenship and nationality raises questions about which of the dual citizenships has priority. This is extremely important when the two countries have opposing interests. ‘It can be a deadly problem when a dual citizen is in a high position within our government. Can one imagine a Japanese citizen serving in the Pentagon during WWII? Alternatively, how about a citizen of the Soviet Union holding a cabinet position in the White House during the Cold War?
Leaders must own the county they purport to lead. In Pakistan, leaders invest heavily abroad-when in hot waters, they skip the boat to live in ample abundance abroad only to return once some kind of deal is struck to return to be ‘leaders’ again.
What about paying taxes and ensuring that past ten years of taxes filed by an aspirant is attached with papers filed? Also, that the taxes filed and income declared is in line with lifestyle followed.
Can gifts by parents through unknown sources to off springs playing ‘little leaders’ whiten the dubious ownership?
“While the constitution is to be implemented, being a part of the basic law does not make a provision sacrosanct. There are enough black laws on the statue book: the notorious FCR being one. The same is the case with Article 62. There is a need to replace it with a more judicious amendment in sync with the spirit of the times.”(Op-Ed Column by Aziz ud din Ahmad Pakistan Today April 5, 2013)
Any constitution must reflect the spirit of needs of a country. Laws must serve the people of the country. A constitution reflects the most important laws of a country. It lays out provisions for how a country must be governed. Without coherent rules, anarchy can be a predictable outcome.
The writer is a lawyer, academic and political analyst. She has authored a book titled ‘A Comparative Analysis of Media & Media Laws in Pakistan.’ She can be contacted at: email@example.com and tweets at @yasmeen_9