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Agha Faisal
Tuesday, March 05, 2013
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The civil society, bolstered by its stellar performance in the movement for the restoration of the judiciary, is once again back in action. This time it is striving to ensure that the next set of lawmakers is devoid of lawbreakers.

There are vociferous demands that the Election Commission of Pakistan disqualify all fake-degree holders from contesting the upcoming general elections. It is also being insisted that the Election Commission of Pakistan should scrutinise the degrees of all 1,174 current members of the national and provincial assemblies and then determine whether they should be eligible to contest the upcoming general election.

The graduation requirement for parliamentarians was imposed by the Conduct of General Elections Order 2002. The relevant provision required that each parliamentary candidate possess a bachelor’s degree in any discipline or any degree recognised as an equivalent by the University Grants Commission (now Higher Education Commission) or any other law for the time being in force.

The requirement for having a degree recognised as an equivalent of a bachelor’s degree by the University Grants Commission, was quite straightforward. The University Grants Commission maintained a list of accredited institutions and if a parliamentary candidate had a degree from any such institution then such a degree was sufficient for the purpose of the electoral laws.

The requirement for having a degree recognised as an equivalent of a bachelor’s degree by any other law in force was meant to avoid disenfranchising the holders of sanads from accredited religious seminaries.

The alternate requirement, of possessing a bachelor’s degree in any discipline, was the subject matter of detailed scrutiny by our superior courts.

In the Umer Ayub Khan case, the Election Tribunal of then NWFP held that filing of a detailed marksheet, instead of a bachelor’s degree, was sufficient to qualify the candidate for contesting the elections.

Subsequently, in the Ali Mohammad Mahar case, the Election Tribunal of Sindh maintained that submission of a transcript and a letter from the university, instead of a bachelor’s degree, was sufficient to qualify the candidate for contesting the elections.

It is clear from both these judgements that the requirement for possessing a bachelor’s degree in any discipline did not mean the possession of the actual degree certificate by the candidate at the time of filing nominations for parliament.

The most controversial aspect of the graduation requirement for parliamentary candidates was whether “possess a bachelor’s degree in any discipline” meant that such a degree had to be obtained from an institution accredited by the University Grants Commission or any other law for the time being in force.

A full bench of the Sindh High Court, comprising the then chief justice, the then senior puisne judge and the subsequent chief justice and the present chief justice, determined this controversy in the case of Syed Ali Bux Shah.

The judgement, authored by the present chief justice of the Sindh High Court, held that “from a plain reading of the above it appears that a person aspiring to contest elections of National or Provincial Assembly must possess either of the three qualifications envisaged in Article 8-A of the Election Order 2002 and Section 99(1)(cc) of the Representation of People Act 1976, ie (i) a person who is a graduate possessing a bachelor degree in any discipline OR (ii) Any degree recognised by the (a) University Grants Commission or under any other law for the time being in force. A person who is a graduate, possessing a bachelor degree is qualified to contest forthcoming general election both in National and Provincial Assembly. The first qualification referred to above is independent of any recognition of a degree as equivalent by the University Grants Commission under the UGC Act 1974 OR any other law for the time being in force.”

Therefore, the law is clear that “possess a bachelor’s degree in any discipline” did not mean that such a degree had to be obtained from an institution accredited by the University Grants Commission or any other law for the time being in force.

It would appear that all 1,174 members of our national and provincial assemblies are in possession of degrees, and hence were qualified to contest in the 2008 general elections. Barring any member holding a forged or fabricated degree, there is very little to scrutinise in terms of the degrees that were submitted by such parliamentarians.

The law relating to election disputes emanates from Article 225 of the constitution, which states that no election to a House or a provincial assembly shall be called into question except by an election petition presented to such tribunal and in such manner as may be determined by an act of parliament.

The act dealing with election disputes is the Representation of People Act 1976. Section 52 of the Act stipulates that no election shall be called in question except by an election petition made by a candidate for that election and that the limitation for presentation of such a petition is 45 days from the publication in the official gazette of the name of the returned candidate. It is fairly certain that no adverse findings have been rendered against any of the current parliamentarians in any election petition, or else they would not still be members of parliament.

The superior courts have generally deprecated efforts to disqualify a candidate in pre-election proceedings. In the famous case of Waqas Akram versus Dr Muhammad Tahirul Qadri and others, the Supreme Court held that if a candidate is debarred from contesting the election then he would also be debarred from seeking the relief that he be declared to have been duly elected. Therefore, election disputes are best left to be adjudicated in election petitions, filed post election.

There is another provision in the electoral laws to deal with holders of fake degrees. Section 78(3)(d) of the Representation of People Act 1976 stipulates that a person is guilty of corrupt practice if he makes a false submission in respect of his educational qualifications. The law permits any person, rather than another candidate, to initiate such a complaint. However, the law also states that if such a complaint proves to be false then the complainant shall be punishable with imprisonment for a term of up to three years and a fine.

The trial for the offence of corrupt practice is required to be conducted before the sessions court and it is a virtual certainty that under no circumstances can such a trial, along with the appeals process connected with it, be judiciously completed prior to the upcoming general elections.

The upshot of this discussion is that it will be almost impossible to disqualify any present parliamentarian from contesting the upcoming election on the grounds of questionable educational qualifications. More so in view of the fact that such educational qualifications are no longer a prerequisite for contesting elections.

In the event that some novel summary process is crafted to disqualify the present parliamentarians, the same is unlikely to withstand judicial scrutiny. The courts will be flooded with petitions seeking the setting aside of any orders disenfranchising candidates inter alia on the grounds that if a candidate is debarred from contesting the election then he would also be debarred from subsequently seeking the relief that he be declared to have been duly elected.

The courts would be bound by precedent to grant immediate interim relief in such proceedings, allowing disenfranchised candidates to contest the elections, subject to the final orders passed at the conclusion of such proceedings.

The result would be that our next parliament could include legislators whose very existence hangs by the thread of the interim suspension orders that enabled them to contest the elections. Such parliamentarians are likely to be malleable to the machinations of interest groups and would remain cognisant of their fate in the event that they happen to offend the sensibility of any such group.

So the civil society is chasing a mirage in seeking the disqualification of present parliamentarians on the grounds of educational qualifications. While the motivation of the civil society is entirely noble, the only plausible consequence of pursuing this course of action would be to compromise the independence of future parliamentarians and hence the entire legislative system.

The writer is a barrister-at-law.