“…..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]
Why didn’t our parliamentarians pay any heed to the above advice of Supreme Court of Pakistan? The present critics of Article 62(1)(f) ironically refused to delete it during the parleys held for 18th Constitutional Amendment despite insistence of all the major parties. They are now criticising judiciary for sanctifying extra constitutional actions, but have been in the past with the dictators and known as their “allies” and “favourites”.
Everybody knows who wanted to retain undesirable provisions inserted in the Constitution by General Ziaul Haq in the name of so-called “Islamisation”. Pakistan Muslim League-Nawaz was adamant to keep clauses of “sadiq and ameen” despite insistence from Pakistan People’s Party and National Awami Party in 2010.
It is worth mentioning that when the matter was decided in favour of 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.
General Ziaul Haq mutilated the Constitution in many respects but adding the so-called “Islamic” provisions was 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.
On the one hand, the Parliament did not bother to delete the obscure provisions of Article 62 as highlighted by Justice Asif Saeed Khan Khosa in PLD 2015 SC 275; and on the other, the National Assembly on August 22, 2017 and Senate on September 22, 2017 passed the Elections Act, 2017 — a law to consolidate eight separate laws related to elections and to strengthen the Election Commission of Pakistan as an autonomous body — enabling even a convicted person to head a political party.
When Elections Act, 2017 was passed in the National Assembly, less than 50 members were present in a House of 340 — none pointed out the lack of quorum! Opposition leader Syed Khurshid Shah said: “I feel myself ashamed on seeing the situation in the House. Only a couple of ministers out of 53 cabinet members are present”. In the Senate as well, only 76 members out of 104 cast their vote when the law minister, despite ruling of the Chairman, moved an amendment paving way for ousted prime minister, Nawaz Sharif, to become party chief.
The law minister at the time of passage of Election Act, 2017 in National Assembly — when nearly 100 amendments moved by the Opposition were rejected and the PTI staged a token protest walkout — said: “We also want to move for amending Articles 62 and 63 of the Constitution” to reverse life-time disqualification of Nawaz Sharif — still de facto head of ruling party.
Election Act, 2017 is now law of the land and the forthcoming elections of 2018 will be governed by it. It has removed declarations of assets/liabilities/incomes/expenditures by candidates in nomination papers — details in Embarrassing declarations, The News [Political Economy], January 14, 2018 — that is the worst one can think of in a democratic dispensation. It has also enabled a disqualified and/or convicted person to become a party chief and then control the government. All parties in National Assembly voted for removing the bar contained in Article 5 of now repealed Political Parties’ Order, 2002 that “a disqualified person cannot become office bearer of political party”.
Nawaz Sharif after disqualification retained the presidentship of PML-N which is as per section 203 of Election Act, 2017. It reads:
203. Membership of political parties.— (1) Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party or be otherwise associated with a political party or take part in political activities or be elected as an office-bearer of a political party.
The constitutionality of the above provision is presently before the Supreme Court of Pakistan. It was approved in National Assembly and Senate. This shows that our parliamentarians hesitate to undo legacies of the dictators in the Constitution even when the Supreme Court gives clear hints, but enact laws facilitating the disqualified to head parties they represent. When legislators act against Constitution and undermine rule of law, the corrupt officials in institutions protect the law breakers and plunderers of national wealth in lieu of monetary and other benefits. In civilized societies such elements are put behind bars, their ill-gotten money and assets are seized but in Pakistan on the contrary, they make the entire system captive for continuing the process of looting the masses and plundering the national wealth and get amnesty schemes.
We need a public campaign for amending the Constitution and electoral laws to delete obscure provisions like requiring a candidate be “honest”, ‘sagacious’, ‘righteous’ and ‘non-profligate’. But at the same time provisions must be inserted 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.