In 2012, before Nawaz Sharif came into power as third time prime minister, our Supreme Court in the case of Workers’ Party Pakistan & Others v Federation of Pakistan & Others [PLD 2012 Supreme Court 681] observed that “all public power is a sacred trust, which is to be exercised fairly, justly, honestly and in accordance with law. This was not something new. We all know that in the Holy Quran at various places it is emphasised that not only rulers but every human being should not devour another’s property or bribe officials to secure that belongs to another person. The same message is part and parcel of every religion or secular ethical system.
This was summed up aptly by Edmund Burke in his famous book published in 1790 [Reflections on the Revolution in France] that “all persons possessing any portion of power ought to be strongly and awfully impressed with an idea that they act in trust, and that they are to account for their conduct in that trust to the one great Master, Author, and Founder of society”.
Recently, the Indian Supreme Court in a judgement [Lok Prahari v Union of India & Others], delivered on February 16, 2018, has taken the view that “the purpose of prescribing disqualifications [for candidates] is to preserve the purity of the electoral process. Purity of electoral process is fundamental to the survival of a healthy democracy”. The petition was filed by a Lucknow-based NGO challenging provisions of the Indian Representation of the People Act, 195. The Indian Supreme Court judgement has barred “any convicted person to vote or participate in polls or even continue in office either as a legislator or parliamentarian”. However, the judgement would be implemented prospectively and the existing legislators would not be affected.
The Supreme Court of Pakistan in its decision in C.P. No.37 to 45, 47 to 51 & 54 of 2017 on February 21, 2018 has held in categorical terms that:
“The argument that a Party Head can exist beyond the ambit, purview and scope of the constitutional and legal framework within which he operates if accepted would lead to illogical and unreasonable results which were not visualized or intended by the framers of the Constitution. Further, Article 63A has been inserted in the Constitution inter alia to regulate working of parliamentary parties of political parties represented in the Parliament. To assert that Article 63A has no nexus, link or connection with Article 17 of the Constitution which furnishes the very basis to form and join political parties is not only illogical but also irrational and untenable. Both Articles deal with the same broad subject and have to be read, understood and interpreted harmoniously.”
Articles 62 and 63 of the Constitution of Pakistan, 1973 enumerate a number of conditions that a prospective candidate or elected members has to fulfill or avoid in order to contest elections for the Senate, National Assembly or provincial assemblies or continue after being elected.
In the disqualification of Nawaz Sharif and subsequent restraining order not to even hold the position of head of party — Pakistan Muslim League (Nawaz) — registered in his own name. It is worth mentioning that Nawaz Sharif, disqualified on July 28, 2017 by Supreme Court under Article 62(1)(f), did not listen to the PPP’s demand to delete it during the parleys on 18th ConstitutionalAmendment in 2010. Mr. Justice Asif Saeed Khan Khosa in his note in the case of Ishaq Khan Khakwani & Others v Mian Nawaz Sharif & Others PLD 2015 Supreme Court 275 observed as under:
“…..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”.
In the above judgement, the clear advice given in 2015 was that there should be objective tests for eligibility of candidates rather than subjective ones in Article 62(1)(d), (e) and (f) that provide that “person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless—
(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, non-profligate, honest and ameen, there being no declaration to the contrary by a court of law.
The above conditions, as held in the case of Ishaq Khan Khakwani & Others v Mian Nawaz Sharif & Others PLD 2015 Supreme Court 275 “provide a feast of legal obscurities”. These provisions were added by General Ziaul Haq, who mutilated the 1973 Constitution in many respects but adding the so-called “Islamic” provisions was his worst act of pretense. 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 electioneering is polluted through money power as became evident in recent and previous Senate elections — Senate polls and its credibility, The News, March 3, 2018 and Senate polls marred by open buying and selling of voted, The News, March 3, 2012.
The Supreme Court of India in Lok Prahari v Union of India & Others has held that those who amass wealth by abusing office and live beyond means or fail to pay taxes or discharge obligations under any law of the land cannot contest elections. It is pertinent to mention that in the Finance Act 2013, the National Assembly levied a new tax under the name of Income Support Levy “to provide financial assistance and other social protection and safety net measures to economically distressed persons and families”.
According to ‘Parliamentarians’ Tax Directory for year ending 30 June 2013’, published by FBR on February 28, 2014, only 20 members of Senate, National Assembly and Provincial Assemblies paid this tax. The Income Support Levy Act, 2013 was subsequently repealed through Finance Act 2014. The default of paying this tax for one year when it was in force disentitles all the parliamentarians who were liable to pay it, to sit in the houses. How unfortunate that even after publication of Tax Directory, neither FBR took any action against them nor did anyone move petitions before the competent forum to get them disqualified under the Constitution of Pakistan.
It is time that some NGOs like Lok Prahari in India, file petitions in the Supreme Court to challenge the provisions of Election Act 2017 and rules made thereunder deleting the declarations by candidates related to tax and financial matters — see details in Embarrassing declarations, The News on Sunday, January 14, 2018 and Electoral reforms—the finished agenda, The Express Tribune, January 2, 2018.
We need a public campaign asking the parliamentarians for amending the constitution and electoral laws to delete obscure provisions like requiring a candidate to be ‘honest’, ‘sagacious’, ‘righteous’ and ‘non-profligate’ and retain or reinsert the provisions that block the way of plunderers of national wealth, tax evaders and criminals to even participate in politics what to speak of holding party positions and contesting elections as held by Indian Supreme Court in Lok Prahari v Union of India & Others.