Senate chairman faces his first test in Rehman Malik case
By: Tariq Butt
ISLAMABAD: Senate Chairman Nayyar Bokhari is for the first time faced with a tough case of his six-month-old incumbency, as he is required to recommend unseating of Interior Minister Rehman Malik as senator under the Supreme Court’s order on dual nationality.
However, his National Assembly counterpart, Speaker Dr Fehmida Mirza, had set aside the ineligibility of the-then Prime Minister Yusuf Raza Gilani, ordered by the apex court, on the ground that no question of his disqualification had arisen. But the Supreme Court had later struck down her ruling.
Since assuming the top constitutional office, just a heartbeat away from the Presidency, Bokhari has stayed away from any controversy. He has luckily not been confronted with a difficult situation to handle so far and had a very smooth sailing.
Legal experts say Bokhari needs no scrutiny or applying mind, as he is required to just perform a ritual, a formality, as a postman to deliver the judicial order. They say if he decided to go against court direction, his decision would also be challenged in the Supreme Court and its result would be no different from that of the speaker’s ruling on Gilani.
Meanwhile, the Election Commission of Pakistan (ECP) is going to disqualify on its own, without involving the apex court, the remaining double nationality holding MPs, whose cases were not pointed out in the Supreme Court, when it would get fresh declarations on oath from all the lawmakers.
The apex court directed the ECP to examine the cases of the MPs and the members of provincial assemblies, individually, by obtaining fresh declaration on oath from all of them that they don’t hold double nationality.
While knocking down the speaker’s ruling, the apex court had held that a seven-member bench, in its April 26, 2012 judgment, found Gilani guilty of contempt and sentenced him to undergo imprisonment, and since no appeal was filed against this judgment, the conviction attained finality. Therefore, Gilani had become disqualified from being an MP and ceased to be the prime minister and his office shall be deemed to be vacant. Accordingly, the ECP is required to issue notification of his disqualification.
Relying on this judgment, the court ordered the ECP to unseat the 11 members of the national and provincial assemblies without referring their cases to their speakers.
The short order clearly declared Malik disqualified as against his lawyer Anwar Mansoor Khan’s argument when it said … disqualification incurred by him is envisaged under the law … Not only the counsel but the interior minister also believed that his party man, Bokhari, being at the helm will treat him as Dr Fehmida Mirza had cared for Gilani.
Had the apex court not declared Malik disqualified along with 11 other lawmakers, it would have not ordered separately that Malik “is directed to refund all monetary benefits drawn by him upto 11.7.2012 for the period during which he occupied the public office in the same manner as directed in the case of other Parliamentarians noted above.”
Not only this, the order directed the ECP to institute legal proceedings against Malik like other disqualified MPs on the same charge. However, till the time the Senate chairman recommends Malik’s unseating, the interior minister will continue holding his cabinet position as well as the Senate membership.
The court order is unambiguous in directing Bokhari to disqualify Malik. It says at the time of filing of nomination papers for election to the Senate in 2008, Malik had made a false declaration that he was not subject to any of the disqualifications specified in Article 63 or any other law for the time being in force, therefore, reference will be required to be made to the Senate chairman under the Constitution and the law, which lays down that a person shall not be qualified from being elected or chosen as a member of an assembly unless he is sagacious, righteous and non-profligate and honest and ‘ameen’.
It further said that in view of the false declaration filed by him at the time of contesting the election in 2008, Malik cannot be considered sagacious, righteous, honest and ‘ameen’ within the contemplation of the relevant law. Therefore, for such purposes Article 63(p) is to be adhered to because the disqualification incurred by him is envisaged under the law in view of his own statement that he had renounced his citizenship of UK whereas the fact remains that such renunciation along with declaration can only be seen as having been made on May 29, 2012.