Supreme Court Justice Asif Saeed Khan Khosa wrote the following article critical of the ambiguity inherent in Articles 62 and 63 of the Constitution in the Pakistan Law Directory 1988, while he was yet to be elevated to the bench and was a barrister. As a judge, he has referred to and elaborated on his article in the Ishaq Khan Khakwani and Others v Mian Mohammad Nawaz Sharif and Others case (Constitutional Petitions 78, 79 and 85 of 2014) as well as in the judgment of the Panama Papers case (Constitutional Petitions 29 and 30 of 2016 and Constitutional Petition 03 of 2017).
In both those judgements – one of which dismissed petitions to disqualify the sitting Prime Minister and one that resulted in his disqualification — Justice Khosa has maintained that he stands by his original arguments made in the 1988 article. However, in the Panama Papers case, he has also pointed out that “as long as the above mentioned provisions are a part of the Constitution the courts of the country are under a sworn commitment to enforce them.”
Eos is reproducing the article here in its original form since it presents one of the most thoughtful and well-argued legal perspectives on a controversial part of the constitution.
The very purpose of having a written Constitution for a country is to ensure certainty and clarity in respect of various matters about which the Constitution makes express stipulations. If the desired objectives of clarity and certainty are not achieved by the provisions of a Constitution and if the Constitutional provisions themselves create more ambiguities and uncertainties then the desired object is frustrated and defeated. One such example of Constitutional uncertainties and obscurities can be found in Articles 62 and 63 of the Constitution of the Islamic Republic of Pakistan, 1973 as amended up to date. These two Articles deal with qualifications and disqualifications respectively for candidature and membership of the Majlis‑e‑Shoora (Parliament) and by virtue of Article 113 the same qualifications and disqualifications have been adopted for candidature and membership of Provincial Assemblies also. Certain ambiguities and confusions created by these provisions of the Constitution are discussed in the following paragraphs.
At the very outset the rationale of having separate provisions about qualifications and disqualifications is not easy to understand. A person who is not possessed of the requisite qualifications is obviously to be disqualified and, conversely, a person who incurs or suffers from any of the specified disqualifications can obviously be termed as a person not qualified. Thus, the distinction made between qualifications and disqualifications is, on the face of it, illusory.
This distinction is further blurred by the provisions of Section 68(1)(b) of the Representation of the People Act, 1976, which provides that an Election Tribunal can declare the election of a returned candidate to be void if “the returned candidate was not, on the nomination day, qualified for, or was disqualified from, being elected as a member.” Therefore, if the qualifications and disqualifications were to be bracketted together then there does not appear to be any need for having two separate lists in this respect. Despite this the only objection that can be raised against the existence of two separate lists in this regard is one of superfluity and nothing more. But the objection can be more serious if due to this superfluity an apparent conflict and contradiction creeps into these two separate provisions. In such a situation an attempt at resolving the conflict can damage the spirit of one provision or the other and may also, in a given case, call for committing violence upon the phraseology of the Constitutional provisions in an attempt to harmonise the seemingly inconsistent provisions. One such example of apparently conflicting provisions within these two Articles is the conflict between the languages and requirements contained in Article 62(g) and Article 63(1)(h). But more about it later.
In an appropriate case the honourable superior Courts of Pakistan may have to try hard to reconcile and harmonise these two seemingly inconsistent provisions of the Constitution so as to ensure the survival of both these provisions.
The amended Article 62 of the Constitution uses such phraseology and terminology which creates confusion in the minds of the citizens and may produce nightmares for lawyers and Courts. Take for example clause (d) of the said Article which provides that a 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.”
Now, the Constitution does not define as to what is meant by the words “good character” nor does, to my mind, any other statute. A person’s character and a judgment about it can be based on a host of circumstances and relates essentially to subjective assessment. A character may be good for one but may not be good enough in the eyes of another. And then what kind of proof can or cannot be led in this respect before the Returning Officer at the time of scrutiny of nomination papers or before the Election Tribunal in an election petition?
The object of Constitution, as observed earlier, is to create certainty in laws and conduct and not to codify confusion and ambiguities. Similarly the requirement of “commonly known” in the above reproduced clause (d) of Article 62 as the standard of proof in this respect makes the job of the Returning Officer, the Election Tribunal or a Court of law very difficult in its application of the law of evidence. Is it not that the successful election of the returned candidate itself is indicative of the fact that he is not commonly known to be a person who violates Islamic Injunctions? On the other hand if the society as a whole has become so morally bankrupt that it elects a person who is commonly known to be one who violates Islamic Injunctions then the testimonies of members of the same society before the Election Tribunal regarding common knowledge are by themselves not safe to be relied upon.
Even otherwise the Constitution uses the words “Islamic Injunctions” without defining the same. There is no exhaustive list of Islamic Injunctions given by any sect of Islam. Sometimes even the local social values are equated with Islamic Injunctions. There may even be disagreements between various religious scholars and sects as to what is or is not an Injunction and how it is different from a mere disapproval. The framers of the Constitution (or those who brought about these amendments therein) jumped in where angels had feared to tread. The vague and unspecific language used in this clause is very hard to apply in practical terms and adds nothing but confusion to the election laws.
Clause (e) of Article 62 is not much different. It lays down that a person shall not be qualified to be elected or chosen as e member of Majlis-e-Shoora (Parliament) unless —
(e) “he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins.”
This is a comprehensive provision but is comprehensively obscure. The idea is to ensure the election of pious Muslims but the enforceability of this clause in a Court of law is nothing but a nightmare.
The requirement of adequacy of knowledge of Islamic teachings has been laid down without providing a yardstick to judge the same. In some interviews for jobs the knowledge by heart of ‘Dua-i-Qanoot’ is considered sufficient knowledge of Islamic teachings while on the other hand a scholar from Al-Azhar University in Cairo may confess of his inadequacy of such knowledge. It is also said that the height of knowledge is to know that one does not know much. Then there may be a debate as to what is included in the ‘Islamic teachings’. Does it mean the Holy Qur’an and Sunnah or does it also extend to various teachings and interpretations given by different sects? As far as the requirement of practising the obligatory duties prescribed by Islam is concerned, the Constitution does not specify as to what are these obligatory duties. If the ‘obligatory duties’ refer only to the ‘Faraiz’ like ‘Namaz’, ‘Rozah’, ‘Zakat’ and ‘Haj’ then there could be some certainty attached to the Constitutional provision in this respect but the Islamic scholars include a host of other duties as obligatory duties prescribed by Islam both in the religious and social fields.
Again the requirement of abstaining from ‘major sins’ has been included in this clause without any specifics. The religious scholars do not agree on an exhaustive list of major sins. Some say that the major sins are the ‘Gunah-e-Kabirah’ but again there is no agreed and exhaustive list of such sins available. Some scholars are of the opinion that only those sins are major sins against which Hadd is enforceable but others give it an enlarged interpretation. According to some Ahadith of the Holy Prophet (p.b.u.h.) even disobedience towards parents and giving of false evidence are also major sins. Some offences or sins may be greatly reprehensible socially but may still not be included in the list of major sins. Again the use of the word “abstains” is open to many interpretations. It is not clear whether such a person should be abstaining from the major sins at or about the time of his nomination for elections or should have abstained from such sins throughout his life. Whether some lapses in the distant past could also be contemplated to be within the scope and application of the word “abstains” which, by the use of the present tense, could only have an application to a person’s present conduct and not his past?
Similarly clause (f) of Article 62 of the Constitution provides a feast of legal obscurities. It lays down that a person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless —
(f) “he is sagacious, righteous and non-profligate and honest and ameen.”
Whether a person is ‘sagacious’ or not depends upon a comprehensive study of his mind which is 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. 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. It is proverbial that devil himself knoweth not the intention of man. So, why to have such requirements in the law, nay, the Constitution, which cannot even be defined, not to talk of proof.
The other requirements qua being ‘honest’ and ‘ameen’ have a clear reference towards the Holy Prophet’s (PBUH) attributes as ‘Sadiq’ and ‘Ameen’. This as well as other requirements envisaged by the preceding clauses of Article 62, if applied strictly, are probably incorporated in the Constitution to ensure that only the pure and pious Muslims (living up to the standard of a prophet of God Almighty) should be elected to our assemblies so that, as provided in the preamble, the sovereignty of God Almighty could be exercised by them as a sacred trust.
But, instead of being idealistic, the Constitution of a country should be more practicable. The line of prophethood has been discontinued and now we are left with sinful mortals. The political arena in our country is full of heavy-weights whose social and political credentials outweigh their moral or religious credentials. Even the electorate in our country have also repeatedly demonstrated their preference for practical wisdom and utility over religious puritanism. Thus the inclusion of unrealistic and ill-defined requirements in the Basic Law of the Land renders the same impracticable and detracts from the sanctity which the Constitution otherwise deserves.
Now coming back to the question of a possible conflict between the provisions of Article 62 dealing with qualifications and those of Article 63 dealing with disqualifications one such example of seeming conflict can be found in the provisions of Article 62(g) and Article 63(1)(h). Article 62(g) provides that a person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless —
Art. 62(g): “he has not been convicted for a crime involving moral turpitude or for giving false evidence.”
On the other hand Article 63(1)(h) provides that person shall be disqualified from being elected or chosen as, and from being a member of the Majlis-e-Shoora (Parliament) if:
Art. 63(1)(h): “he has been, on conviction for any offence which in the opinion of the Chief Election Commissioner involves moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release.”
Now Article 62(g) contemplates that anybody who has been convicted for a crime involving moral turpitude or for giving false evidence, irrespective of the quantum of sentence or the lapse of any length of time since his release, is not qualified to be elected. But at the same time Article 63(1)(h) provides that such a conviction is not to disqualify a person if consequent upon his conviction his sentence was for less than a period of two years or even where his sentence was for two or more years but a period of five years has elapsed since his release. Thus, on the face of it a person who has been convicted and sentenced to a period of less than two years or has been convicted and sentenced to a period of two years or more but a period of five years has elapsed since his release may not be disqualified under Article 63(1)(h) but he is also not qualified by virtue of Article 62(g).
Therefore, as both these provisions stand, a person may not be disqualified but at the same time may also not be qualified to be elected. A concession given by Article 63(1)(h) has been whittled down by Article 62(g) and if Article 62(g) is given its effect then Article 63(1)(h) is rendered redundant.
It is a cardinal principle of interpretation of Constitution that redundancy cannot be presumed or lightly inferred. In an appropriate case the honourable superior Courts of Pakistan may have to try hard to reconcile and harmonise these two seemingly inconsistent provisions of the Constitution so as to ensure the survival of both these provisions.
The above discussion would show that 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.
Originally published in Pakistan Law Directory (Journal), 1988.
Mr Asif Saeed Khan Khosa is currently a judge in the Supreme Court of Pakistan
Published in Dawn, EOS, September 1st, 2017