ISLAMABAD: The vague, uncertain, obscure and conflicting terminology of Articles 62 and 63 in the Constitution that spells out qualifications and disqualifications among parliamentarians is bound to confuse the electorate at large, hound candidates and their voters and embarrass returning officers at the time of scrutiny of nomination papers.

These observations were made by Justice Asif Saeed Khosa in his additional note on a detailed judgment issued by the Supreme Court on Tuesday, explaining reasons why a seven-judge larger Supreme Court headed by Chief Justice Nasir-ul-Mulk had dismissed on Dec 9, 2014, a set of identical petitions seeking disqualification of Prime Minister Nawaz Sharif.

Also read: SC promises to interpret Articles 62, 63 for all times

The petitions were moved by Senior Vice President of Insaaf Lawyers’ Forum of the PTI, Gohar Nawaz Sindhu, PTI’s central leader Ishaq Khakwani and PML-Q President Chaudhry Shujaat Hussain.

All of them had prayed to the Supreme Court to unseat the prime minister for his alleged misstatement of facts at the floor of the National Assembly on Aug 29, 2014, that the government had not asked armed forces to mediate and become a guarantor between the government as well as protesting parties PTI and PAT to end their sit-in at the Constitution Avenue.

The chief justice authored the verdict highlighting that it had been the consistent view of the courts that if the determination of any question asked to the court required interpretation or application of any provision of the Constitution the court was obliged to adjudicate upon the same notwithstanding that the action impugned or the questions raised had political overtones.

In addition to the Chief Justice, Justice Jawwad S. Khawaja and Justice Khosa also added their separate additional notes in the judgment.

In his note, Justice Khosa explained that of late Articles 62 and 63 had become a part of the national narrative and what was the import and scope of Articles 62 and 63 and why these had so far failed to achieve their full potential or intended results.

Citing an article “Qualifications for Candidates: A Constitutional Puzzle,” written by Justice Khosa as a young lawyer in 1988 in which he had highlighted certain obscurities and impracticalities ingrained in some clauses of Article 62 and 63, the judge stated that the nightmare of interpretation and application apprehended and anticipated by him more than a quarter of a century ago, were at present gnawing the returning officers, election tribunals and the superior courts.

But those responsible (lawmakers) for rationalising troublesome provisions through appropriate amendments have remained slept over the matter for so long and they still demonstrate no sign of waking up, he regretted.

As long as these obscurities and impracticalities were not addressed, nobody should complain that returning officers, tribunals or superior courts would be successful in catching the candidates having the bad character in the net of Article 62 and 63, the note said.

This is also difficult when particularly the electorate is quite happy to elect such candidates with sweeping majority while in full knowledge of their character and antecedents, the additional note explained.

The Constitution does not define ‘good character’ and the terminology creates more confusion in the minds of citizens. Besides, the requirement of adequate knowledge of Islamic teachings has been laid down without a yardstick, the note said, adding that in some interviews for jobs the knowledge by heart of Dua-i-Qanoot was considered sufficient knowledge of Islamic teachings, while on the other an Islamic scholar from Al Azhar University in Cairo might confess to his inadequate knowledge of Islam at some other forum.

Whether a person is ‘sagacious’ also depends upon a comprehensive study of his mind, the note highlighted, adding that this was not possible within the limited scope of election authorities or courts involved in election disputes.

The acumen or sagacity of a man cannot be fathomed and the same is true of being ‘righteous’ and ‘non-profligate’. These factors relate to a man’s state of mind and cannot be properly encompassed without a detailed and in-depth study of his entire life, the note explained.

“Let us not shy away acknowledging of the hard reality that there is 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 but he is returned by the electorate to the same chamber with a bigger majority and he triumphantly re-enters the house flashing a sign of victory,” the note regretted.

“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,” it said.

It might be true that humans are the best of God’s creations, but the divine structural design never intended an ordinary human being to be perfect or free from all failings, frailties or impurities, Justice Khosa emphasised.

Meanwhile Justice Khawaja in his additional note observed that the question as to which court would have the jurisdiction of making the declaration or conviction envisioned by Articles 62 and 63 needed to be decided because these provisions could not be rendered redundant for the reason that the Constitution did not identify the court which was competent to render the declaration under Article 62(1 f) or the conviction under Article 63(1 g).

Likewise the procedure of the court and the standard of proof would be relevant considering that a member of parliament who has been elected by the people is to be unseated, the note said.

Published in Dawn March 4th , 2015

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