“…..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”—Justice Asif Saeed Khan Khosa in Ishaq Khan Khakwani & Others v Mian Nawaz Sharif & Others PLD 2015 Supreme Court 275]
The seven-member bench of the Supreme Court of Pakistan on the second day of the new year (2024) pointed time and again about the adjectives used in Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan [“the Constitution”]. The Court was hearing various cases where issue of life disqualification involved vis-à-vis Article 62(1)(f) of the Constitution.
The important question that went unnoticed was why did not our parliamentarians take any remedial measure in removing “vague, uncertain, obscure and conflicting terminology used in different provisions of Articles 62 and 63 of the Constitution” despite clear finding by the Supreme Court in Ishaq Khan Khakwani & Others v Mian Nawaz Sharif & Others PLD 2015 Supreme Court 275? It is a great tragedy that the main affectee of judgement of Supreme Court announced on April 13, 2018 that disqualification under Article 62(1)(f) of Constitution was perpetual ironically refused to delete it despite insistence of all the major parties during the parleys held for Constitution (Eighteenth Amendment) Act 2010, [commonly called 18th Constitutional Amendment], became effective on April 19, 2010 after receiving assent of President of Pakistan.
The five-member Bench of Supreme Court in its judgement (with Justice Sh. Azmat Saeed in his separate note agreeing with the conclusion but not with the reasons in entirety), 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 Sh. Azmat Saeed. in his note held, “I have had the privilege to go through the judgment of my learned brother Umar 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……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.
Justice Sh. Azmat Saeed further noted, “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 and 63 as aptly and clearly pointed out by Justice Asif Saeed Khan Khosa. The Parliament did not bother to amend/delete the obscure provisions of Article 62(1)(f) as highlighted by Justice Asif Saeed Khan Khosa. No debate was made in Parliament for amending the Constitution and electoral laws to delete obscure provisions like requiring a candidate be “honest”, ‘sagacious’, ‘righteous’ and ‘non-profligate’.
Justice Sh. Azmat Saeed in his separate note very rightly pointed out, “The stand taken by the learned Attorney General for Pakistan is not only fair but is also in accordance with the obvious and self-evident intent of Article 62(1)(f) of the Constitution”.
Whatever the decision seven-member bench may reach, but the incontrovertible fact is that the fault is entirely of the Parliament to accept 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 thereunder should not be for 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 General Zia in Article 62 should be deleted, the Parliament must insert clear and unambiguous ones barring the way of plunderers of national wealth, tax evaders and criminals to even participate in politics what to speak of contesting elections and holding party offices.
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Dr. Ikramul Haq, Advocate Supreme Court, is Adjunct Faculty at Lahore University of Management Sciences (LUMS) and member Advisory Board and Visiting Senior Fellow of Pakistan Institute of Development Economics (PIDE)
