Daily Times

What did the four-day sit-in in Islamabad’s chilling winter led by Dr Tahirul Qadri achieve is the question frequently raised by people. In his speech of December 23, 2012, he had raised three operative demands. One, declaring the army and judiciary as genuine stakeholders, he said both should be consulted in the appointment of the caretaker government. Two, the contesting candidates should be scrutinised on the basis of Article 62 (d), (e) and (f) of the constitution to weed out corrupt candidates. Three, the election commission should be reformed, particularly giving it enough time to scrutinise the candidates’ credentials.

The ruling coalition cleverly converted the first demand regarding consultation with the army and judiciary in its favour; it protested that it was not a constitutional demand. The opposition also gave a unanimous message to Dr Qadri that he should not try to insert unconstitutional demands and to derail the elections that are just a couple of months away. This isolated Dr Qadri, and his game plan to ride the tide with the support of the establishment flopped. However, the ruling coalition agreed to consult him on the formation of the caretaker set up.

Now if Dr Qadri had the support of the army it did not work. And if it was a bluff, it had been called; at best, he can be a proxy of the army. But the question here is why would the all-powerful army establishment use an imported tele-Islamist to press for their role in politics? The army establishment, as we all know, whether it is in power or not, calls the shots when it wants to. That is the political history of Pakistan.

But the positive development is that democratic forces have gained maturity in the last two decades and are now conscious that they should not allow any extra-constitutional power to interfere in politics by pitching one against the other. This message was clear when Mian Nawaz Sharif held a press conference in Lahore along with the heads of some other opposition parties. However, the ruling coalition may use the clause of consultation with Dr Qadri about the caretaker set-up as a bargaining tool, as the opposition would use the Imran Khan card.

But the more mischievous demand was regarding political cleansing by invoking clauses of Article 62 that were inserted by General Ziaul Haq in the constitution in line with his scheme to purge the politicians he may have disliked. Back in January 2010, in this space I pointed out that such subjective clauses could become troublesome in future, and hence, they should be struck out of the constitution. I had maintained that the Iranian Constitution provides for an institution of the ‘Religious Guardianship’ (Velayat Faqiye). This “Guardianship of the Just Man of Religious Law (Fiqiyeh-e-Adl)” is on “the basis of the continuous guardianship and leadership (Imamate) …under all conditions…” The ‘Religious Guardian’ and his council have the right to disqualify any potential candidate from contesting the elections of the Iranian parliament if they do not consider him pious and religious enough to be elected by the people. Thus, the decision is not left to the people but made by a small coterie of the clergy. According to my limited knowledge, there is no precedent of such an institution in the Muslim states’ history.

General Ziaul Haq, who considered himself a kind of religious guardian of the country, added these disputable clauses to Article 62 of the 1973 constitution of Pakistan. These clauses of Article 62 say, “A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless:

62 (d) “he is of good character and is not commonly known as one who violates Islamic injunctions”;

62 (e) “he has adequate knowledge of Islamic teachings and practises obligatory duties prescribed by Islam as well as abstains from major sins”;

62 (f) “he is sagacious, righteous and non-profligate and honest and ameen”.

Until the judgement of the Honourable Supreme Court, these clauses of the constitution had remained dormant. Nobody has sought disqualification of any member of parliament, the president and the prime minister by invoking them. Now in the coming elections these clauses are likely to be invoked by rival candidates and probably Dr Qadri’s legal team on the behest of his ‘sponsors’. The apprehension is would the hyperactive superior judiciary acquire the role of ‘religious guardian’ a la Iran? Who else would make a decision on such subjective issues whether a member of parliament (or for that matter the president who is the bull’s eye here) does not violate Islamic injunctions, has adequate knowledge of the Islamic teachings, abstains from major sins and is honest and ameen? Who would decide what the Islamic injunctions are? One sect believes that going to a saint’s shrine is sacrilegious, to the other it is Islamic. Now if one would go with the Islam practised in Saudi Arabia, many parliamentarians should be disqualified because they are heirs of the saints of south Punjab or Sindh. Would the worthy judges decide what adequate knowledge of Islamic teachings is; what a major and a minor sin is; and which parliamentarian is honest or dishonest?

By invoking such dormant clauses, a window has been opened for ‘inspired litigants’ like Dr Qadri to challenge the qualification of more than half, if not more, members of parliament. Would our election commission and judges then be qualified to make decisions on such wide-ranging religion-loaded issues? Perhaps the Honourable Court would not like to be put in this tight spot. Otherwise, a long judicial process would delay elections on many seats.

One view is that the superior judiciary should not be blamed for referring to what is in the constitution. I asked a member of the Raza Rabbani Constitution Amendment Committee whether deletion of these clauses was on the agenda. He said that there were bigger issues to be discussed and nobody was interested in including those clauses. The point is that the court has heavily relied on Islamic clauses and the leading parties are in no mood to reform the constitution. While the PML-N is right-of-centre, the PPP has always tried to appease the mullahs unsuccessfully. Only the ANP and MQM, who are in parliament, are clear on the issue of separating religion from politics.

However, the one-month time given for scrutiny has a positive side also. The candidates will have to be sure that the State Bank of Pakistan declares that they have not been wilful defaulters. There can always be some genuine defaulters as businesses do go under for reasons beyond a businessman’s control. However, in the previous elections it was also checked whether the candidates were defaulters of the utility companies or not. Whether the candidates have paid their due taxes, an issue on which media has been attacking them, can also be checked. Many politicians can get away as they are clever enough to claim that their only source of income is their salary as a parliamentarian on which tax is deducted at source. Do we really think that they do their wheeling-dealings in their own name?

The writer can be reached at ayazbabar@gmail.com