While I am no fan of MNA Jamshed Dasti whose various gaffes and chauvinistic statements have been well-documented by Tazeen and Cafe Pyala, the return to public attention of the graduation requirement for lawmakers raises some ethical questions.
First, the ethics of the requirement introduced via Chief Executive Order No. 7 in 2002 (and later validated by the parliament and the Supreme Court) by Musharraf in 2002 whereby an individual had to be a graduate in order to stand up for a seat in the provincial and the national assemblies:
a person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) or a Provincial Assembly unless he is at least a graduate possessing a bachelor degree in any discipline or any degree recognized as equivalent by the University Grants Commission under the University Grants Commission Act, 1974 (XXIII of 1974)] 2[or any other law for the time being in force.]
In the detailed judgment to the petitions filed against the graduation requirement in 2002, the then Chief Justice Riaz Ahmed had justified the upholding of the requirement based on the claim that the requirement was a positive step towards reforming Pakistan’s toxic political culture. (In this regard, he saw fit to provide a brief narrative of Pakistani politics in the 90s culminating with Musharraf’s takeover at which point the nation breathed a “sigh of relief”)
In the light of what has been narrated above, it is crystal clear that the political scenario in Pakistan is a sad tale of failures on the part of the public representatives. We may not go into the past but the 11 years history of the political events is an eye opener. Four National Assemblies in succession were dissolved on the ground of misdemeanour on the part of the government and the party forming it. The grounds on which the Assemblies were dissolved and which were upheld by this Court are sufficient for and necessitate a drastic change in the political culture of the country.
This decision to uphold this requirement was despite the fact that the judgment acknowledged that the percentage of graduates in Pakistan was less than 2% of the population and that there was no precedent for this requirement in any other country (for example neither the UK nor the US have any such requirement). Rather, the bench seemed to be motivated by a desire to shape the political culture of Pakistan in order to create a more educated political class. This was in keeping with Musharraf’s philosophy of emphasizing grassroots democracy as the “real” democracy in contrast to the poisonous national level politics of the 90s.
The question, of course, is how ethical does this Order and the subsequent Supreme Court judgment look to us now? Is any law that in one fell swoop disqualifies 98% of the population from holding office in the national or provincial assemblies a fair one? Does it violate article 25(1) of the constitution that states that all citizens of Pakistan are equal before the law or does the graduation requirement count as a reasonable classification as the Supreme Court judgment of 2002 argued.
Personally I think this is a no-brainer – In Pakistan, where barring a few extremely unusual cases of great intellectual ability, your social status and your geographical location determine your ability to gain a college education, such a requirement essentially discriminates against the poor and those who live in far-flung locations without access to secondary education let alone college preparatory schools or degree-granting institutions of higher learning. However in their eternal quest to reform the political culture of Pakistan the Supreme Court and the military rulers of the day apparently did not see the situation in the same light.
Come March 2008 and this requirement was overturned by the Supreme Court on the grounds that it was discriminatory against the vast majority of the Pakistani population. Unfortunately the detailed judgment for this decision doesn’t seem to be available on the Supreme Court website. It was widely speculated that this move was so that Zardari would not be put in a tight spot since his education qualifications are dubious at best.
Since the judgment is not available I am not sure as to whether this requirement was declared void ab initio like the NRO was. The question is, should it have been? Let’s say that there had been a similarly discriminatory law in effect that barred a certain ethnicity or religion from public office. Would it be correct, ethically, for it to be overturned but still be considered retroactively valid for the February 2008 elections? Another question that follows from that once such a discriminatory law was repealed should it be considered to be violating election regulations to have lied in order to bypass it as seems to have occurred in the case of Jamshed Dasti?
It certainly would be peculiar in the case of any other law deemed discriminatory for the Supreme Court to pursue cases pertaining to fraud related to avoiding it, 2 years after it had been repealed.
Perhaps the discriminatory nature of this law is not as clear as discrimination based on race, religion, or gender. But while it’s hard to sympathize with the Jamshed Dastis and Zardaris in this regard it is worth nothing that with this law in effect there would have been no Mai Jori either.
The enthusiasm with which the Supreme Court has pursued this issue (with Justice Ramday allegedly interrogating Jamshed Dasti on various Surahs of the Quran in order to verify his Islamiat degree and Justice Khilji Arif declaring him an embarrassment to the National Assembly when he was unable to respond correctly) suggests that the worldview of the Justices is more in line with that of the bench that wrote the original 2002 judgment validating the graduation requirement than with the bench that overturned the law in 2008. Perhaps the Supreme Court’s outrage is based on the issue of perjury and forgery rather than the issue of the graduation requirement itself. But is it ethical to so eagerly pursue a case regarding forgery to bypass an already overturned law?
Another issue is whether following the law is itself an absolute moral imperative regardless of whether the ethics of that law are deeply controversial or in this case have been assessed to be incorrect at a later date by the Supreme Court. i.e. is it really wrong to have bypassed a law that the Supreme Court later acknowledged as discriminatory? After all if there had been no graduation requirement to qualify for public office, there would have been no need for Jamshed Dasti to lie about his degree and as a result violate the Representation of the People’s Act. As a result it’s impossible to treat the two issues (the issue of the fake degree and the issue of the now-overturned graduation requirement) separately. The Hamid Mir school of thought regarding “rule of law” would consider it enough that the issue was illegal at the time and that there really should be no other principle taken into consideration. I am not too sure about this and moreover I don’t know if Hamid Mir would so meekly accept any law that he considered against his personal ethics. The question, too, arises is to what extent the judiciary should show flexibility when dealing with secondary issues surrounding an already overturned law. Furthermore, what does it show about the current judiciary’s worldview that from its actions today it appears to be chafing at the bit for someone to re-institute a discriminatory law like the graduation requirement so that it can continue with its divinely sanctioned mission to “cleanse” Pakistan’s political