Puritanical democracy
By Faisal Siddiqi | 11/5/2012

BY invoking the criterion of being `sagacious, righteous, non-profligate, honest and ameen` for elected members of assemblies, the significance of the Supreme Court (SC) judgment in the `dual nationality case` lies beyond the declaration of law that dual nationals are not eligible to be members of parliament and provincial assemblies in Pakistan.

More importantly, the SC `dual national judgment` is about what kinds of people should democratically represent the people of Pakistan. In other words, this case clearly brings out the battle raging in Pakistan between the contrasting versions of democracy i.e. judicial versus political versions of democracy.

Even though Justice Khawaja seems to think that the `text of the constitution is clear enough`, Justice Khilji`s interpretation of Article 63(1)(c) of the constitution fills 10 pages. This article deals with the issue of dual nationals and elected members.

In this exercise, he goes to the extent of even trying to interpret a comma in Article 63(1)(c) of the 1973 Constitution, as opposed to its absence in Article 103(d) of the 1962 constitution. Therefore, we can safely conclude that the question of whether dual nationals can be members of parliament and the provincial assemblies required detailed judicial interpretation.

Justice Khilji`s conclusion is simple: dual nationals cannot contest elections for, nor become members of, parliament and the provincial assemblies.

It is difficult to question the SC`s interpretation of Articles 63(1)(c), especially the elaborate reasoning given by Justice Khawaja explaining the rationale behind this prohibition.The rationale is that the spirit of the constitution requires complete and undivided loyalty to Pakistan and the oath of allegiance to a foreign state is bound to create a conflict of interest rendering a person unsuited to discharging his or her public duty as an elected representative of the people of Pakistan. However, he clarifies that the law and constitution do not bar dual nationality but only prohibits its holders from high elected office.

As a result of the above interpretation, the SC disqualified 11 sitting members of parliament and the provincial assemblies. Nothing extraordinary in these findings.

But then the SC makes a quantum leap in moral and legal terms. The SC further holds that these disqualified members were fully aware of the above interpretation of Article 63(1)(c).

They `apparently` made a false declaration that they were qualified to contest elections. Thus, they apparently cannot be considered `sagacious, righteous, non-profligate, honest and ameen`.

Therefore, not only should criminal proceedings be initiated against them but all monetary benefits drawn by them as public representatives for such period should be refunded to the public exchequer.

How do we assess this leap? Firstly, can it be denied that the question as to whether dual nationals are eligible to be elected members involved a genuine legal dispute about the interpretation of Article 63(1)(c) and the law? This issue had never been decided by the SC and there was only a single judgment of the Lahore High Court on it.

Are our elected members supposed to be legal perfectionists to know the exact meaning of each constitutional provision (e.g. Articles 62 and 63 of the constitution contain over 20 detailed qualifications/disqualifications), when even lawyers were divided over dual nationals` eligibility as elected members? In such circumstances, is it fair to accuse these elected members of `apparently` lying, not being righteous or ameen? Is it fair to order criminal proceedings against them? Is it fair to direct them to refund all monetary benefits, even though there was no evidence that they were fundamentally deficient in performing their duties as elected members? Yes, elected members should be disqualified if there is a defect in their qualifications but is it right and just to cast aspersions on their dignity and reputation that are guaranteed under Articles 4 & 14 of the constitution? Secondly, criteria such as `good character`, `practises obligatory duties prescribed by Islam`, and `sagacious, righteous, non-profligate, honest and ameen` are so broad, vague and subjective that caution has to be exercised in applying them.

Two principles can be suggested for their constitutional application. These criteria should be seen less as strict qualifications and more as guidelines, or benchmarks, for the long-term development of a more moral societal order, to be adopted on a self regulation basis by our representatives.

The other principle is that, in order to disqualify someone for, say, not being ameen, a grave moral and legal offence and a higher standard of proof, should be the requirement. For example, even Article 63 allows certain convicts to be elected as members after a certain number of years have elapsed since their conviction.

Thirdly, a balance has to be struck between requirements supposed to be legal perfectionists to know the exact meaning of each constitutional provision (e.g. Articles 62 and 63 of the constitution contain over 20 detailed qualifications/disqualifications), when even lawyers were divided over dual nationals` eligibility as elected members? In such circumstances, is it fair to accuse these elected members of `apparently` lying, not being righteous or ameen? Is it fair to order criminal proceedings against them? Is it fair to direct them to refund all monetary benefits, even though there was no evidence that they were fundamentally deficient in performing their duties as elected members? Yes, elected members should be disqualified if there is a defect in their qualifications but is it right and just to cast aspersions on their dignity and reputation that are guaranteed under Articles 4 & 14 of the constitution? Secondly, criteria such as `good character`, `practises obligatory duties prescribed by Islam`, and `sagacious, righteous, non-profligate, honest and ameen` are so broad, vague and subjective that caution has to be exercised in applying them.

Two principles can be suggested for their constitutional application. These criteria should be seen less as strict qualifications and more as guidelines, or benchmarks, for the long-term development of a more moral societal order, to be adopted on a self regulation basis by our representatives.

The other principle is that, in order to disqualify someone for, say, not being ameen, a grave moral and legal offence and a higher standard of proof, should be the requirement. For example, even Article 63 allows certain convicts to be elected as members after a certain number of years have elapsed since their conviction.

Thirdly, a balance has to be struck between requirements of political representation and legal compliance and between private and public morality.

Pakistan is a hard country in which there are no ideal choices but only hard and imperfect choices. There is no ideal choice between a person, who may not come up to the ideals of the rule of law but who understands and represents the people and one who is the king of legal compliance but neither understands nor can represent the people.

Similarly, there is no ideal choice between a person who may not come up to the ideals of personal morality but who represents/expresses the views of the majority on various issues (e.g. against terrorism, against religious extremism, women rights etc.) and one who exemplifies personal morality but has regressive religious and social views which are not those of the people he seeks to represent.

Therefore, there should be no attempt to create public representatives for a Pakistan, which does not exist.

Democracy requires that we have public representatives for the real Pakistan, in which law, though very important, is not everything. Moreover, we should refrain from throwing moral stones at others as we should not forget that we all live in damaged (if not broken) moral glass houses ourselves.
The writer is a lawyer.