A facility for fraud – by IA Rehman (from 2007)

From Dawn
See also, Polls and Madrasah Sanads By IA Rehman (in 2006)

AS the life of the National Assembly born in 2002 comes to a close, a review of its performance is in order. This Assembly, the more powerful of the two Houses of parliament, was born with a disability. The condition that only graduates were eligible to sit in it had eroded its representative character. Besides, this condition proved to be a facility for fraud and subversive of representative rule and justice both.

In the theory of democratic governance, elected representatives are not expected to be experts who can be hired on the market; they are only required to be aware of their electors’ needs and aspirations.

Thus, the dominant view is that anyone qualified to vote can be a candidate for elective office subject only to restrictions of age. The assemblies elected before Independence did pretty well although the highest educational qualification required of a poor voter (and a legislator or minister) was matriculation, while taxpayers and propertied people were not required to be literate at all.

The BA degree does not make anyone an expert. Most graduates in Pakistan know less of life and the world than a hari or a cobbler or a factory worker, and their false notions of superiority over the illiterates prevents them from appreciating the reality, except for their limited bread-and-butter concerns. Experience of the 2002-2007 parliament does not show that its members proved to be any better upholders of democratic, responsible rule than their less academically qualified predecessors, or even more efficient in a technical, purely clerical sense.

Above all, the graduation condition opened the way to corruption and crime. Court records confirm many politicians’ efforts at buying and forging degrees. And the scheme to admit madressah certificates as graduation degrees led to perhaps the greatest electoral fraud in the subcontinent’s history. The deception was detected within months of the 2002 polls, but the huge wrong has not been remedied to this day. The story of this case made the argument for abolishing the degree condition incontrovertible.

A challenge to the election of 68 parliamentarians, 65 belonging to the MMA and three to the PML (Q), was mounted in the Supreme Court in June 2003 by Advocate Aslam Khaki, who contended that the madressah sanads (certificates) the respondents had relied upon were not equivalent to graduation. The court admitted the petition and ordered notices to the Election Commission and the respondents through the Senate chairman and speakers of the national/provincial assemblies.

The petition aroused great interest as the respondents included most of the MMA members of the National Assembly. Only a couple of MMA leaders would have retained their seats if the petition was accepted.

The matter became more serious when an election tribunal of the Peshawar High Court nullified Kohat MNA Mufti Ibrar Sultan’s election, saying his sanad was not equivalent to graduation. Quite a few legal stalwarts had led arguments. The petitioner was a former federal law minister, and the attorney-general and the provincial advocate-general were summoned to assist the tribunal. The former firmly declared that madressah sanads were not equivalent to graduation and the latter agreed with him.

The Election Commission immediately called for a by-election. Although the MMA had decreed against litigation on the issue it ignored Mufti Ibrar Sultan’s petition to the Supreme Court. The court reinstated the MNA and clubbed his petition with that of Advocate Khaki. That was in July 2003.

The issue in the case was quite simple. There was no dispute about the decisions by various educational authorities that the madressah sanads had been declared equivalent to secondary board/university degrees only for teaching jobs and for no other purpose. The problem was that the Election Commission had held some sanads equivalent to graduation. Thus, the issue that needed to be determined was whether an Election Commission decision, even if made in good faith, could make lawful something that was quite unlawful.

Between July 2003 and September 2006, a number of similar cases came up before the courts. The situation became bizarre in 2005 when high courts disagreed among themselves on the eligibility of sanad-holding candidates for the offices of nazim/naib nazim. Eventually the Supreme Court ruled in August 2005 that mere sanad-holders could not become nazims.

When the Khaki case came up for hearing in September 2006 the Supreme Court ordered fresh notices to the 68 respondents through parliamentary offices. (That notices issued by the highest court could not be served for years on people who were known public figures is another matter that reflects on a major deficiency in the country’s justice system).

On this occasion Parliamentary Affairs Minister Sher Afgan caused a big surprise by appearing in the court determined to argue against the respondents and later on declared that they had absented themselves because they knew they would lose. Recently, he moved the court for early hearing.The MMA leaders did not appear in the court but frequently broadcast their views on the subject. They first said the Supreme Court had become an unconstitutional institution in view of the LFO amendments to the Constitution. Maulana Fazlur Rahman, one of the respondents, declared: ‘We, along with the religious institutions, will go to the people’s courts since we do not expect justice from “these” courts.’

An MMA leader said after the 2005 Supreme Court ruling that the verdict would not hit its MNAs because if they were disqualified the validity of the Seventeenth Amendment would become questionable. Hafiz Husain Ahmad added the MMA would not be bound by any Supreme Court verdict until the Chief Justice and other judges had taken a fresh oath under the 1973 Constitution.

It may not be proper to speculate on the judiciary’s possible role in allowing a large number of parliamentarians to unlawfully hold their seats, except for making a humble submission that the non-disposal of the sanads case is one of the most glaring examples of justice delayed amounting to justice denied. However, there are strong grounds to suspect an unholy compact between the regime and the MMA.

The challenge to the sanad-carrying parliamentarians came in the summer of 2003 while the opposition was still campaigning against General Musharraf’s election and the amendments to the Constitution vide the LFO.

The MMA played a lead role in the fierce controversies that raged throughout 2003. No reference was made to the MMA’s need of safeguards against the Damocles’ sword hanging over its leaders’ heads. It was only towards the end of the year that the government and the MMA signed an agreement in mutual interest, an agreement that must rank as one of the most curious accord documents in the world.

The result was the adoption of the Seventeenth Amendment before the year ended. The LFO received constitutional sanctity, the government agreed to constitute a National Security Council under an Act of Parliament, objections to General Musharraf’s election melted away and the MMA parliamentarians were spared an eligibility test.

Going by the Supreme Court judgment of 2005 regarding local government polls and the judgment of the Peshawar High Court Election Tribunal of 2003, which has not yet been overturned, one can say that the parliament during the Musharraf republic had more than three scores of members who were not qualified to be there, or at least whose entitlement to be in parliament was not clear beyond any shadow of doubt. And all this because of the absurd condition that candidates for election to legislatures must have somehow secured a graduation degree.

That the parliamentarians concerned might have won their seats without their certificates is most probably true. That only magnifies the establishment’s guilt in polluting public life and compromising the position of parliamentarians by insisting on a requirement that was and is totally indefensible.

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