I am not a legal expert but as a citizen and a keen student of my country’s political history, I have an opinion on Articles 62 and 63 of the Constitution of Pakistan.
Apparently, the court has not invoked Article 63(1)g directly and convicted the prime minister under section 5 of the contempt of court ordinance, but it does mention the said article in its verdict and says that the finding and the conviction are likely to entail some serious consequences in terms of this article which may be treated as a mitigating factor to the sentence they pass. Meaning thereby, since the convict may face disqualification from his office and his seat in parliament, they have restricted themselves to a softer sentence.
The issue of writing a letter to the Swiss Courts to reopen cases against President Asif Ali Zardari, came to surface after the court struck down the National Reconciliation Ordinance (NRO) in 2009, which was issued in 2007 by former president, Gen Pervez Musharraf.
The status of the president enjoying constitutional immunity from any judicial trial apart, one may argue that some judges who took oath under the same dictator’s Provisional Constitutional Order (PCO) and gave his rule lease by sitting on a bench headed by the former Justice Nazim Hussain Siddiqui, found the NRO illegal.
One may also say that the honourable judges are selective in considering cases of the same nature involving other people. Then they also took another year and a half to dismiss the review petition filed by the government. But there is a limit to historicising. Therefore, let us now look at 63(1)g, the complete article it is a part of, and, the preceding Article 62 of the Constitution.
These articles were a part of the 1973 Constitution, subsequently amended in 1974 and made harsher in 1985. Article 62 deals with the qualifications for becoming a member of parliament and Article 63 deals with causes for disqualification from the membership.
While there are obvious reasons to have qualification and disqualification criteria for members in any constitution, the articles our Constitution contains have serious lacunae which can always be used to politically victimise any elected member.
The terms like good character, good moral reputation, moral turpitude, practising obligatory duties prescribed by Islam, abstaining from major sins, Islamic injunctions, Ideology of Pakistan, bringing into ridicule the judiciary or the armed forces, etc are vague, immeasurable and hard to establish in a just way.
For instance, in legal terms, public life is affected by crime and not sin. Morality is a relative concept and good reputation is highly subjective. There was a two-nation theory when Pakistan was created. The Ideology of Pakistan became a usable term only after Gen Sher Ali Pataudi promoted it in 1969, soon to be desecrated in the eastern wing of the country. Besides, what does ridiculing mean?
If some of the judges used the law of necessity in the past, legitimised dictatorships or ruled under duress, can no parliamentarian of Pakistan raise her concerns? If some generals abrogate the Constitution, manipulate political events and violate the limits put by the Constitution, can no parliamentarian raise his voice?
I share my view of Articles 62 and 63 with also Imran Khan, whose politics I otherwise find without substance. He said in June 2007, when the MQM presented a resolution against him, that these articles can only be applied to angels and not human beings.
The writer is an Islamabad-based poet and author. Email: [email protected]