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April 21, 2018
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Article 62 and parliament

Opinion

April 21, 2018

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Justice Asif Saeed Khan Khosa in Ishaq Khan Khakwani and Others v Mian Nawaz Sharif & Others (PLD 2015 SC 275): “…..the vague, uncertain, obscure and conflicting terminology used in different provisions of Articles 62 and 63 of the constitution may be a result of bad draftsmanship or ignorance of the requirement of exactitude so essential to all legal and constitutional instruments yet, as it stands, it is bound to confuse the electorate at large, hound the candidates and their voters, embarrass the Returning Officers at the time of scrutiny of nomination papers, confound the Election Tribunals and become a nightmare for the lawyers and courts in the years to come. It is about time that the appropriate quarters should take a proper remedial step in this respect at the earliest opportunity”

Why didn’t our parliamentarians pay any heed to the above advice? It is a great tragedy of errors that the main person affected by the Supreme Court’s judgment, that disqualification under Article 62(1)(f) of the constitution is permanent, ironically refused to do away with the clause during the parleys held for the 18th Amendment, despite the insistence of all the major political parties.

The five-member bench of the SC in its judgment (with Justice Sheikh Azmat Saeed in his separate note agreeing with the conclusion but not in entirety with the reasons), concluded that: “…we are inclined to hold that the incapacity created for failing to meet the qualifications under Article 62(1)(f) of the constitution imposes a permanent bar which remains in effect so long as the declaratory judgment supporting the conclusion of one of the delinquent kinds of conduct under Article 62(1)(f) of the constitution remains in effect”.

Justice Sheikh Azmat Saeed maintained that: “I have had the privilege to go through the judgment of my learned brother Umer Ata Bandial, J, though I concur with the conclusions drawn in the said judgment but I do not find myself in agreement with reasoning employed in its entirety. The framers of the constitution chose not to do so. This court is empowered to interpret the constitution but not to amend it. It is an equally elemental principle of interpretation of the constitution that nothing can be added thereto, therefore, we cannot read into Article 62(1)(f) of the constitution, a period of such lack of qualification, which is not mentioned therein.

“Incidentally, this court on more than one occasions has already held that lack of qualification suffered under Article 62(1)(f) of the constitution is in perpetuity. Reference, in this behalf, may be made to the judgments of this court reported as ‘Mian Najeeb-ud-Din Owasi and another v Amir Yar Waran and Others’ (PLD 2013 SC 482); ‘Muhammad Nasir Mahmood and another v Federation of Pakistan through Secretary Ministry of Law, Justice and Human Rights Division, Islamabad’ (PLD 2009 SC 107); and ‘Allah Dino Khan Bhayo v Election Commission of Pakistan, Islamabad and others’ (2013 SCMR 1655), and no reason has been advanced to persuade me to take a different view.

“It is worth mentioning that when the matter was decided in favour of Mian Muhammad Nawaz Sharif in ‘Ishaq Khan Khakwani and others v. Mian Muhammad Nawaz Sharif and Others’ (PLD 2015 SC 275), Justice Asif Saeed Khan Khosa noted as under: ‘…clause (f) of Article 62….provides a feast of legal obscurities…whether a person is ‘sagacious’ or not depends upon a comprehensive study…which is not possible within the limited scope of election authorities and courts…The same is true for ‘righteous’ and ‘non-profligate’

“Let us not shy away from acknowledging the hard reality that there is a disconnect between our constitutional morality and our political ethos. 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.

“In the end I may observe that insistence upon complete virtue in an ordinary mortal may be unrealistic and puritanical behaviour of an ordinary human may have a tendency of making him inhuman. It may be true that humans are the best of Almighty Allah’s creations but the divine structural design never intended an ordinary human being to be perfect and free from all failings, frailties or impurities. There may, thus, be some food for thought in what Abraham Lincoln had said about ordinary folks when he had observed that ‘It has been my experience that folks who have no vices have very few virtues’.”

Strangely, nobody took any notice of the above insightful observations – no effort was made by legislators to repeal the obscure parts of Article 62 as aptly and clearly pointed out by Justice Asif Saeed Khan Khosa. Parliament did not bother to amend or delete the obscure provisions of Article 62. There was no debate in parliament to amend the constitution and electoral laws, or to delete obscure provisions.

It is entirely parliament’s fault to have accepted General Ziaul Haq’s mutilated version of the constitution. The so-called ‘Islamic’ provisions added by him were his worst act of hypocrisy. Of course, the supreme law of the land and laws enacted hereunder should not be promoting and protecting those who claim to be honest and sagacious but have amassed ill-gotten wealth to influence politics and to buy votes. This is the real problem of Pakistan, where the corrupt rule and the honest suffer, the rich thrive and the poor strive, yet starve.

While all obscure provisions inserted by Gen Zia should be deleted, parliament must insert unambiguous ones and bar the way for plunderers of national wealth, tax evaders and criminals from even participating in politics, let alone contesting elections and holding party offices.

The writer is an advocate of the Supreme Court and adjunct faculty at LUMS.

Email: [email protected]

Twitter: @drikramulhaq

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