SC justices seek enforcement of articles 62, 63

ISLAMABAD: Justice Asif Saeed Khan Khosa has said that the constitutional emphasis on purity of character of elected representatives is not without a reason but lamented, “Let us not shy away from acknowledging the hard reality that there is a disconnect between our constitutional morality and our political ethos.”
In his note, making part of the recently-announced detailed judgment in cases seeking Prime Minister Nawaz Sharif’s disqualification, Justice Khosa added, “There are no qualms of conscience when through a constitutional and legal process a person is ousted from an elected chamber on account of his academic degree being fake and forged but he is returned by the electorate to the same chamber with a bigger majority and he triumphantly re-enters that chamber while flashing a sign of victory. The sign so shown or flaunted proclaims victory of political expediency over constitutional values and such attitudes of our society call for serious reflection and soul-searching.”
Justice Jawad S Khawaja, who also wrote a separate note in the same judgment, also focused on the question of MPs’ morality and noted that in order to avoid controversy as to the meaning of articles 62(1)(f) and 63(1)(g) of the Constitution and the terms ‘honest’ and ‘Ameen’ used therein, the question involved must be adjudicated to provide guidance through precedent. He said that such a precedent can ensure that constitutional questions and challenges as to the qualifications/disqualifications and eligibility of members of parliament are decided in accordance with one single and definite measure.
Justice Khawaja added, “The question as to which Court will have jurisdiction to make the declaration or conviction envisioned by articles 62 and 63 will also need to be decided because the said Constitutional provisions cannot be rendered redundant for the reason that the Constitution does not identify the court which is competent to render the declaration under Article 62(1)(f) or the conviction under Article 63(1)(g). Likewise, the procedure of the Court and the standard of proof would be relevant considering that a member of parliament who has been elected by the people is to be unseated. I, however, defer to the view that these questions will be decided in a more appropriate case.”
Justice Khosa in his note while emphasisng on purity of character of the elected representatives, recalled an article “Islamic Provisions in the Constitution of Pakistan, 1973”, written by him about 20 years ago which, he insists, still holds good and may be relevant even today.
Justice Khosa wrote, “There are different theories as to why the Muslims of India demanded a separate homeland for themselves in the first half of this century. Some believe that it was for economic reasons and others maintain that it was purely on religious compulsions. However, the fact remains, and there is no denying it, that it was in the name of Islam that Pakistan emerged on the map of the world and the grund norm of the new State and its society, which came to be known as the Ideology of Pakistan, was nothing but Muslim faith.
“Before embarking upon the task of framing of our first Constitution this ideology was translated into words in precise form by the first Constituent Assembly of Pakistan in a resolution passed by it in the year 1949. This resolution, known as the ‘Objectives Resolution’…”
Justice Khosa added, “In the successive Constitutions that were adopted by the people of Pakistan over the last four decades, the principles and provisions of that Objectives Resolution were added as a Preamble thereto till the year 1985 when, through the insertion of Article 2A in the Constitution of Pakistan, 1973, it was categorically provided that The principles and provisions set out in the Objectives Resolution reproduced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly”.
He added, “There are certain remarkable Islamic features of this Objectives Resolution, now a substantive part of our Constitution, which are hard to escape notice. For instance a new dimension has been given therein to the concept of sovereignty of parliament. Although sovereignty of Almighty Allah over the entire universe has been acknowledged yet the State has been recognised as the delegatee thereof which is to exercise that sovereignty through chosen representatives of the people within the limits prescribed by Almighty Allah as a sacred trust.”
“Thus, while conceding sovereignty to a democratically elected parliament, the Constitution simultaneously circumscribes that sovereignty by confining it to the limits prescribed by Almighty Allah. This is in exact conformity with a Muslim’s belief that he may be free to make his own choices in life but he may not overstep the limits prescribed by his Creator. Looked at in this perspective the Constitution of Pakistan, conforming to the Islamic perceptions, recognises democracy as the only mode of governance – but a democracy which does not come in conflict with a Muslim’s faith. To an outsider this may appear to be enigmatic but we the Muslims of Pakistan have no difficulty in understanding and applying this concept. It, therefore, fits into the scheme when the Objectives Resolution refers to ‘the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam’ and envisions a State wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and the Sunnah”. “The scheme”, Justice Khosa said, “unmistakably, is the establishment of a modern and democratic Islamic State in fulfillment of the wishes of the Muslims of this region and the manifestations of this scheme are to be found spread over the entire Constitution of Pakistan.”
“Article 1(1) of the Constitution of Pakistan, 1973 provides that “Pakistan shall be a Federal Republic to be known as the Islamic Republic of Pakistan, hereinafter referred to as Pakistan”. It may be pertinent to point out that Pakistan has been the first country in modern history to introduce the concept of an “Islamic Republic”
which was later on also adopted by Iran and Libya. Not only the name of the country itself but also the political system of its governance incorporated therein shows the wishes of its people to blend modernity with their faith.”
He added, “Article 2 of the Constitution, providing that “Islam shall be the State religion of Pakistan”, again highlights the same theme and accomplishes the very object of creation of Pakistan. Under Article 41(2) of the Constitution the President, who is to be the Head of State of this Islamic Republic, has to be a Muslim. Under Article 50 of the Constitution and the Parliament of the State is to be called the “Majlis-e-Shoora” after the Islamic traditions.”
Justice Khosa added, “The qualifications for being elected to the Majlis-e-Shoora or the Provincial Assemblies also have a distinct Islamic overtone and the following provisions of Article 62 of the Constitution bear an ample testimony to that: “(d) he is of good character and is not commonly known as one who violates Islamic Injunctions; (e) he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins; (f) he is sagacious, righteous and non-profligate and honest and ameen; (g) he has not been convicted for a crime involving moral turpitude or for giving false evidence; (h) he has not, after the establishment of Pakistan, worked against the integrity of the country or opposed the Ideology of Pakistan: Provided that the disqualifications specified in paragraphs (d) and (e) shall not apply to a person who is a non-Muslim, but such a person shall have good moral reputation;”
These qualifications for the legislators, Justice Khosa explained, are understandable if it is kept in mind that such members are to exercise the sovereignty of Almighty Allah as His delegatees by way of a “sacred trust”. Even the laws that are to be made by such legislators cannot cross the limits prescribed by Almighty Allah because by virtue of the Objectives Resolution read with Article 2A of the Constitution the sovereignty of the Majlis-e-Shoora does not transcend the limits prescribed by Almighty Allah.
He added that to clarify any doubt in this respect, Article 227(1) of the Constitution unmincingly provides as follows: “All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such Injunctions.”
Under Article 228, he added, the Constitution has created a Council of Islamic Ideology which is to perform the following functions under Article 230(1) of the Constitution: “(a) To make recommendations to Majlis-e-Shoora (Parliament) and the Provincial Assemblies as to the ways and means of enabling and encouraging the Muslims of Pakistan to order their lives individually and collectively in all respects in accordance with the principles and concepts of Islam as enunciated in the Holy Quran and Sunnah; (b) to advise a House, a Provincial Assembly, the President or a Governor on any question referred to the Council as to whether a proposed law is or is not repugnant to the Injunctions of Islam; (c) to make recommendations as to the measures for bringing existing laws into conformity with the Injunctions of Islam and the stages by which such measures should be brought into effect; and (d) to compile in a suitable form, for the guidance of Majlis-e-Shoora (Parliament) and the Provincial Assemblies, such Injunctions of Islam as can be given legislative effect…”
In Chapter 2 relating to the principles of policy and justice, Khosa maintained, “The Constitution gives top priority to the State’s adoption of a social policy in consonance with the State religion, i.e. Islam. Article 31 of the Constitution, laying down the first Principle of Policy, provides as follows: (1) Steps shall be taken to enable the Muslims of Pakistan, individually and collectively, to order their lives in accordance with the fundamental principles and basic concepts of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to the Holy Quran and Sunnah. (2) The State shall endeavour, as respect the Muslims of Pakistan,- (a) to make the teaching of the Holy Quran and Islamiat compulsory, to encourage and facilitate the learning of Arabic language and to secure correct and exact printing and publishing of the Holy Quran; (b) to promote unity and the observance of the Islamic moral standards; and (c) to secure the proper organisation of zakat, ushr, auqaf and mosques.”
Likewise, Justice Khosa added, “Article 37, dealing with the Principles of Policy regarding promotion of social justice and eradication of social evils, provides in its clauses (g) and (h) that the State shall (g) prevent prostitution, gambling and taking of injurious drugs, printing, publication, circulation and display of obscene literature and advertisements; (h) prevent the consumption of alcoholic liquor otherwise than for medicinal and, in the case of non-Muslims, religious purposes; In the economic field the Constitution of Pakistan, in its Article 38(f), requires the State to eliminate riba as early as possible and Article 31(2)(c) thereof requires the State to secure the proper organisation of zakat and ushr so that a truly Islamic welfare State could be established in Pakistan.”
Justice Khosa further said, “One can notice in the Constitution of Pakistan an Islamic tilt even in the matter of foreign policy to be adopted by the State. Article 40 of the Constitution provides that: The State shall endeavour to preserve and strengthen fraternal relations among Muslim countries based on Islamic unity, support the common interests of the peoples of Asia, Africa and Latin America, promote international peace and security, foster goodwill and friendly relations among all nations and encourage the settlement of international disputes by peaceful means.”
Justice Khosa argued, “This survey of the Constitution of Pakistan, 1973 shows, and shows very clearly, that the wishes of our forefathers who had given great sacrifices for the creation of a separate homeland for the Muslims of this region have found full expression in the Constitution of this homeland. As seen above the Constitution envisions a modern, democratic and welfare Islamic State but, unfortunately, practically we have not been able to travel much in either of those directions so far. Now the need of the hour is to give full effect to that expression so that the true objective behind the creation of this State is accomplished and justified.”
In his separate note, Justice Khawaja maintained that it is clear from the two constitutional provisions — Article 62(1)(f) and Article 63(1)(g) — that it is the Court alone which must first make a declaration or pronounce a conviction before the Speaker of the National Assembly can initiate the process for unseating a Member of Parliament. The Speaker could only act in the matter if there was a prior declaration or conviction made by a Court.
Justice Khawaja noted that significant changes were brought about in the Constitution through the 18th Amendment passed in April, 2010. “Prior to these amendments, there was no requirement of a prior declaration or conviction by a Court. Thus before the passing of the 18th Amendment, the argument that disqualification was a purely political question may have carried some weight.
“But now that references to judicial determination have been introduced in the provisions of the Constitution dealing with electoral disqualification, the Courts cannot step away from their duty to decide such cases in accordance with the law,” Justice Khawaja said.
Justice Khawaja said that the court can take judicial notice of the fact that the general elections held in May, 2013 are, for various reasons, subject of public debate and controversy. “It is with this in view and in order to avoid controversy as to the meaning of Articles 62(1)(f) and 63(1)(g) of the Constitution and the terms ‘honest’ and ‘ameen’ used therein, that the foregoing questions must be adjudicated to provide guidance through precedent.”
He added, “Such precedent can ensure that constitutional questions and challenges as to the qualifications/disqualifications and eligibility of members of parliament are decided in accordance with one single and definite measure; otherwise there can be vastly divergent and differing approaches which could be taken by various returning officers or election tribunals as per their reading and understanding of the Constitution. This in turn has the potential of leading to and rendering any election controversial bearing in mind that there are 1,070 constituencies and if, based on past statistical data, there are on average 10 candidates in each constituency, there will be more than 10,000 aspirants for elected office in the National and Provincial Assemblies who will require scrutiny and evaluation on the touchstone of Articles 62 and 63 of the Constitution. In the last general elections, cases did come up where contradictory and inconsistent decisions were handed down by Returning Officers for want of guidance through precedent.”