Last week, the Supreme Court bench hearing legislators' dual nationality case delivered its verdict, directing the Election Commission to disqualify eleven members of Parliament and provincial assemblies from both the treasury and opposition benches. The court however decided to treat the 12th known dual national Interior Minister Rehman Malik differently.
They are all to face criminal proceedings under Article 63 of the Constitution for filing false declarations at the election time, while Malik is to be tried on additional charges. The case of the eleven was simple. Article 63 states "a person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament)... if (c) he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign sate." It is quite likely that for most of them the concealment was inadvertent considering that the Election Commission declaration form accompanying nomination papers lacked clarity. But the Interior Minister can hide behind no such excuse.
He has brought upon himself an unnecessary problem because of a bad habit. He rarely means what he says, with or without reason. For instance, when a while ago a private Pakistani TV crew, arrested and imprisoned by Israel while covering the Gaza-bound aid flotilla, were returning home, Malik told journalists gathered at the airport to receive them that he had been constantly in touch with the Interpol for the two Pakistanis' release and that the Interpol had assured help. One wondered what the International Criminal Police organisation had to do with Israel's military policy. That though was not his problem. He had to claim credit, whether anyone believed it or not. Former Sindh home minister Dr Zulfiqar Mirza best described his style of operating when he who told an interviewer if you see Rehman Malik eating an apple he will tell you it's a banana.
It turns out that the Interior Minister had been trying to mislead the court as well all through the proceedings of his dual citizenship case. He told the court that he had renounced his British citizenship in 2008. His counsel maintained that Malik had initiated renunciation process in 2008, but wouldn't produce documentary evidence backing the claim. When the court insisted on seeing the evidence, he simply said he couldn't find the documents. This went on until about three months ago. After sometime, the counsel came up with a receipt of an application to the UK Border Agency, but press reports pointed out that the amount it showed was consistent with recent charges than those payable in 2008. Which meant the application was not made in 2008.
The Border Agency website says, a person stops being a British citizen "on the date your declaration is registered by the Home Secretary, and further that "the date will be shown on your copy of the form." So the court relied on two letters dated May 29 and June 1 of this year from the Agency that confirmed the renunciation had taken place in June. That month Malik was first disqualified as a member of Parliament. But the government would show scant respect for the court decision, re-inducting him in the Senate to make a comeback as Interior Minister.
This time though Malik is in for serious trouble. He faces legal proceedings following the court's observation that he could not be considered sagacious, righteous, non-profligate, honest and ameen, thus invoking Article 62 (f) that says a person shall not be qualified to be a member of Parliament unless "he is sagacious, righteous, non-profligate, honest and ameen, there being no declaration to the contrary by a court of law."
Unfortunately the government, constantly trying to counteract court decisions in various cases, moved to do the same in the present instance. The Attorney General for Pakistan sent a letter to the Chief Election Commission Fakhruddin G Ebrahim to chide him for de-notifying the affected members on the court direction telling him "as the Principal Law Officer of the country" that the Election Commissioner had the exclusive obligation to determine the question of disqualification, and is not to perform its functions on the direction of any court, including the Supreme Court of Pakistan. Knowing the independent-minded Fakhurddin the AGP must have foreseen the response, which came back promptly, but the intention clearly was to render the court verdict as controversial as possible. The CEC shot back that every state institution is "bound by all directions of the Supreme Court." It is a matter of no small satisfaction that the EC is now in safe hands. Once the much respected Fakhurddin fully establishes its independence, it would not be possible for his successors to deviate from that path.
Nonetheless, there is a general unease about Article 62 (f), because it contains a long list of intangible and highly subjective character traits inserted in the Constitution by a brutal military dictator, General Ziaul Haq. Needless to say, the dictator, who used religion to prolong his stay in power, himself embodied, from the public perspective, the opposite of all the above listed attributes. In fact he put them there inspired by an urge to keep the genuine opposition at bay. Most of them, such as sagacious, righteous and non-profligate are open to different interpretations, depending on who is using them against whom and to what end. Needless to say, constitutional law has to be cognisable. The present Parliament could scrap this objectionable clause while making the 18th Amendment, and substitute it with something based on a sound legal basis such as punishment for lying under oath. That opportunity was wasted.
Rehman Malik may be getting his comeuppance. But the law under which he is to be held to account for his act of omission or commission is more a cause for concern than comfort. The case is a reminder that hypocrisy and deceit that flourished under the late and unlamented dictator continues to cast a dark shadow on present-day politics. It does not help to act horrified at the invocation of 62 (f). As long as it is there, the courts cannot be blamed for using it now or later. It must be scrapped, or at least replaced with a provision that makes perjury a cognisable offense.
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