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April 24, 2018

Political battles and constitutional provisions


April 24, 2018

Two common fallacies of reasoning are the ad hominem and genetic fallacies. An argument is ad hominem when instead of validly drawing a conclusion from the premise it attacks the person whose views it purports to contest. A genetic fallacy is when the entire force of a chain of reasoning rests on the origin of the idea that it seeks to support or oppose.

In the wake of the Supreme Court’s judgment of April 13, 2017, the arguments doing the round are that Nawaz Sharif (NS) ought to grin and bear his disqualification for life, because he had been an avid supporter of the amended Article 62 of the constitution, under which a person who has been declared to be not truthful and honest by a court is ineligible to become a member of parliament. Another version of this argument presents his disqualification for life as an expression of poetic justice, for the reason that Article 62 was amended at the behest of his erstwhile mentor Gen Ziaul Haq. A third form of the argument proselytises that NS must pay through the nose, because in 2010 he had shot down a proposal to restore the aforesaid article to its original form.

Manifestly, such arguments are fallacious. Nawaz Sharif might have been an ardent supporter of Article 62 in its present form for one reason or another. But this mere fact by itself does not establish that he deserved to be disqualified for life, nor does it make it obligatory upon the former prime minister to take his permanent banishment from electoral politics on the chin. If NS, or for that matter any other political leader, held favourable views about Article 62 in the past, it does not logically follow that they should always be unflinching in their support to such constitutional provisions.

Consistency is a virtue but not always. Men and women learn or otherwise flip over their positions – and so do institutions. For years, Muhammad Ali Jinnah remained an ambassador of Hindu-Muslim unity and of a united India, but circumstances compelled him to change his mind. Was his demand for a separate homeland for the Muslims illogical or unwarranted for the reason that he held an entirely different view in the past? In England, for decades, the merchant class cushioned the absolute monarchy against the combined strength of the clergy and the nobility before making a common cause with republicans in chipping away the royal authority.

Nawaz Sharif’s present position on Article 62 may have been occasioned by a change of heart, or a shift in interests, or simply by the fact that the chips were down for him. This hardly matters as far as the merits of the case are concerned. Even if he continued to champion the controversial article, it does not prejudice his case. Presently, Imran Khan is a staunch supporter of Article 62, but this fact does not make him liable to be disqualified under its provisions.

These fallacies are also an affront to the honourable judges who delivered the judgment, for instead of appreciating their chain of reasoning, the proponents of such arguments are simply putting down the decision to Nawaz Sharif’s past. It is amazing that this mode of reasoning is being advanced, among others, by the PPP – which boasts of some of the most distinguished legal luminaries, not to speak of diehard supporters of democracy.

Rabid reasoning aside, let’s look briefly at Articles 62 and 63, which together set down the eligibility criteria for the legislators. The present text of Article 62 prescribes eight qualifications for lawmakers. At least three of these pertain to their character including that they must be truthful and honest – clause (1)(f). By contrast, the original text of Article 62 stipulated only three qualifications which pertained to citizenship and age.

Likewise, the original text of Article 63 enumerated only five disqualifications for a legislator which related to his/her citizenship, mental condition, insolvency and holding an office of profit in the service of Pakistan. The amended Article 63 comes up with a plethora of grounds which can render a person ineligible from becoming a parliamentarian. Taken together, both the articles are so wide in their scope that if applied to the letter, only a person of a saintly character will be competent to get elected as a lawmaker. However, as long as the present texts of the two articles exist on the green book they will continue to be invoked. Thus, there is a strong case for cutting back on their scope.

Alternative interpretations of past events are at best speculative. So it will, at best, be conjecture to state that had the 18th Amendment done away with the changes to Articles 62 and 63, Nawaz Sharif’s fate would have been different. The present significance of these two articles is coterminous with that of Article 58 (2)(b) during the 1990s. The article, invoked by the president to dismiss the National Assembly thrice in six years (1990-96), was widely regarded as a fatal threat to democracy. The 18th Amendment deleted the said article, but did that make elected institutions supreme?

By the same token, Article 6 was incorporated into the constitution to prevent military coups. Haunted by the painful memories of the abrogation of fundamental law of the land twice (in 1958 and 1969), the framers of the 1973 constitution deemed it necessary to make subversion of the constitution an act of high treason. However, Article 6 did not hold Ziaul Haq or Pervez Musharraf back from throwing democracy overboard. Not only that, Musharraf from time to time justified his coup on the plea that the basic law of the land can be, and must be, if necessary, set aside to save the state.

A constitution is a legal document that distributes powers and responsibilities among various state organs and defines the rights and duties of the citizens. But as the philosopher Aristotle pointed out in antiquity, there is always a difference, wide or narrow, between what a constitution on paper is and how it actually works. This is because the constitution is only a part of the political system. The actual working of a constitution at any point in time reflects the balance of power among the various institutions as well as between the state and citizens.

Two constitutions having similar texts may turn out to be as different in their working as chalk and cheese. The 1956 constitution of Pakistan was closely modelled on the Indian constitution, which was drawn up in 1950. The 1956 constitution was set aside in only two-and-a-half years, whereas the 1950 constitution remains the basic law of the land in India to date. The explanation is to be found in the different political systems.

The Indian constitution empowers the president to sack the prime minister (Article 75), as well as dissolve the popularly elected Lok Sabha (Article 85). However, no prime minister has ever been sacked in India; and the Lok Sabha is dissolved by the president on the advice of the PM only. Again, the explanation lies in the political system.

Having faced a concatenation of adverse judgments that have brought the curtain on, at least, his electoral career, Nawaz Sharif has pledged to have the constitution amended to ensure that parliament reigns supreme. As the country’s political history bears it out, the changes in the text of the constitution, although important, will by themselves not tip the scales in favour of the elected institutions. Political battles can hardly be won on the strength of constitutional provisions.

The writer is a freelancecontributor.

Email: [email protected]

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