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ARTICLES OF DISCORD

September 01, 2017
Illustration by Marium Ali
Illustration by Marium Ali

It was during the confirmation of her candidacy for a reserved seat in the Punjab Assembly back in April, 2013, that Pakistan Tehreek-i-Insaf (PTI) nominee Sadia Sohail Rana and her husband received an unsolicited lesson in family ethos and parenting at the hands of provincial election commissioner Mehboob Anwar.

“Do you even understand what you are doing?” the top provincial electoral official first chided Shahid Sohail, who was accompanying his wife.

“Who will take care of your home and family if she becomes a member of the assembly? Your children will suffer tremendously,” he went on, disregarding Shahid’s complete support for his wife’s political ambitions that needed to be put on display to convince the electoral officials.

Then he turned to the candidate herself: “Do you remember our national anthem?”

“Yes, very well, sir,” responded Sadia Rana. “Do you want me to rec…?”

Article 62 and Article 63 of the Pakistan Constitution are once again in the limelight after they were used to disqualify a sitting prime minister. As clamour builds to revisit these vestiges of a military dictator, Eos looks at why they have been so divisive...

But Anwar stopped her mid-sentence; Sadia was spared the drill that scores of others had to perform during the scrutiny of their nomination papers. In fact, the 2013 elections saw scores of aspirants have their credentials as candidates challenged under the unascertainable and unquantifiable clauses of Article 62 and Article 63 of the Constitution that require a person to be a righteous, sagacious and honest Muslim of good moral character, loyal to the ideology of Pakistan.

Besides Sadia Rana, there were many others who reported, both from across Punjab as well as some other parts of the country, of electoral officials asking awkward questions about aspiring candidates’ personal lives and embarrassing them publicly during the confirmation of their candidacies. Some were tested if they could recite verses from the Holy Quran; others were asked to demonstrate their allegiance to the “ideology of Pakistan.” Many more were told to prove that they were of good character.

A large number of candidates were waylaid as electoral officials, who were drawn from the local district judiciary, insisted on inspecting their religious and patriotic credentials. In the absence of directions from the Election Commission of Pakistan and any legal interpretation by the courts, these law officers took it upon themselves to decipher the articles and implement them as they deemed fit.

“It was quite a show,” recalls Rana now, more than four years later. “We [the candidates] felt like we were in an interrogation room where we were supposed to prove that our character was beyond reproach and we were better Muslims and more nationalistic than other Pakistanis.”

Several hundred nominations were rejected as officials vetted the candidates. But the arbitrary implementation of articles 62 and 63 meant that an aspiring candidate contesting from two constituencies could be disqualified from one constituency but confirmed from another, depending on the respective electoral officials’ interpretation and understanding of the eligibility criteria.

Since electoral officials had gone beyond their remit to (morally) judge the candidates and reject their nominations, the courts were forced to intervene and overturn their decisions. In a subsequent ruling, Justice Mansoor Ali Shah — now the chief justice of the Lahore High Court — instructed returning officers to refrain from asking the candidates “random, intrusive and inquisitive questions” that neither had any connection with the information supplied in nomination papers nor with the objections raised by opposing candidates.

But while these instances could be viewed as lower-level officials on a power trip, Pakistan witnessed an incumbent prime minister being chucked out of power on the same grounds. Such is the arbitrary scope of articles 62 and 63 that the ultimate determination against Prime Minister Nawaz Sharif came on a point that was not even in the original charge sheet against him in the Panama Papers case being heard by the court.

Without a doubt, Nawaz Sharif is the most high-profile casualty of articles 62 and 63.

THE ORIGINAL SIN

How did we land in such a mess?

Excerpt from the Dawn front page published on March 2, 1985
Excerpt from the Dawn front page published on March 2, 1985

The moral and religious stipulations under articles 62 and 63 were of course not part of the original law. The legislation declaring that only the morally upright and trustworthy could contest elections came about on March 2, 1985 — just two days after the country went to the polls (held on non-party basis).

In the Revival of the Constitution of 1973 Order (RCO) that was promulgated on March 2, General Zia announced an amendment to Articles 62 and 63, the conditions of eligibility and disqualification for candidates contesting elections. This step was taken to ensure that the military dictator could continue to keep politicians in line. The RCO was given legal cover by the parliament through the controversial Eighth Amendment to the 1973 Constitution.

Originally, the regulations dealing with qualification and disqualification of a member of the parliament required only that an individual to be a Pakistani not less than 25 years of age in case of the National Assembly and provincial assemblies, and not less than 30 years in case of the Senate. It was also mandatory for them to have been enrolled as a voter.

But the new sections were to deal with qualification and disqualification of a candidate before and after their election to the legislative assemblies, both national and provincial. In reality, the new clauses made the constitutional stipulations for prospective parliamentarians quite complicated and ambiguous.

“These original provisions were objective, ascertainable and contained verifiable and quantifiable criteria about the candidates as they dealt with factors like age, solvency, citizenship and mental capacity of candidates,” notes Nasar Ahmad, a Lahore-based lawyer.

“But General Zia changed their substance to induct subjective and unverifiable criteria for qualification and disqualification of a parliamentarian. These changes impinge heavily upon the rights of individuals to contest the election and voters to elect their representatives on ambiguous and subjective grounds. Who can possibly judge if a candidate is a good Muslim and loyal to the ideology of Pakistan?”

Some of the changes made by General Zia require a candidate to be “of good character and not commonly known as one who violates Islamic injunctions”; “has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins”; “is sagacious, righteous, non-profligate, honest and ameen, there being no declaration to the contrary by a court of law”; and “has not, after the establishment of Pakistan, worked against the integrity of the country or opposed the ideology of Pakistan” or “has not ridiculed and defamed the judiciary and armed forces”.

The last dictator at the helm, General Pervez Musharraf, also tweaked these provisions through his Legal Framework Order-2002 to prevent absconders and loan and utility bill/government dues defaulters from entering the parliament. But his changes, despite being controversial, did not alter the original articles much. The original sin is primarily the legacy of Ziaul Haq that continues to haunt candidates and voters, and allows electoral officials and the courts great room to interpret the legislation and disqualify anyone at their whim.

IN BED WITH THE DEVIL?

The two prime ministers to have been chucked out of office by the judiciary: Mian Nawaz Sharif and Yousuf Raza Gilani
The two prime ministers to have been chucked out of office by the judiciary: Mian Nawaz Sharif and Yousuf Raza Gilani

The first time electoral officials had used these clauses to judge the moral character of candidates, measure their loyalty to the country and determine their religious credentials — though not as extensively as in 2013 — and disqualify them was in 2008. Moreover, the restored “independent judiciary” under Justice Iftikhar Mohammad Chaudhry had employed them extensively to disqualify legislators with dual nationality and fake degrees in the months leading up to the elections. Interior Minister Rehman Malik and some other parliamentarians were declared by the court as not being “sagacious” and “ameen.” In disqualifying the legislators, the courts also did away with the requirement of having the speaker of the National Assembly and the chairman of the Senate to determine whether a “question” had arisen regarding the disqualification of a member.

However, the Pakistan Muslim League-Nawaz (PML-N) and Jamaat-i-Islami (JI) categorically refused to purge the articles of the unquantifiable criteria inducted by the military ruler to control politicians and the parliament. This was around the time when the Pakistan Peoples Party (PPP) under President Asif Zardari tried to reform articles 62 and 63, and build a mechanism against their arbitrary implementation by electoral staff, courts and other organs of the state during parliamentary negotiations on the constitutional reforms package later adopted as the 18th Amendment in 2010.

Ahmad points out that the 18th amendment did tinker with the eligibility criteria provided in articles 62 and 63 and handed powers to the courts to decide if a candidate or member was righteous and sagacious or not. But these changes failed to remove the imprints of General Zia on the two articles. The lawyer further argues that in their original form, both articles 62 and 63 provide an in-built, objective mechanism to institute a system of checks and balances to keep individuals who should not be legislating on behalf of voters or misusing parliamentary authority out of the parliament.

“Such easily and objectively verifiable and ascertainable provisions are found in every constitution,” says Ahmad. But the additions made by General Zia provide certain undemocratic forces a weapon to keep anyone out of the electoral process and chuck out any unwanted individual from the parliament using articles 62 and 63.”

The lawyer is of the view that rewording of the controversial constitutional provisions as suggested by some politicians will not help their cause. “You don’t find any other constitution with similarly vague and subjective provisions,” he says. “These need to have articles 62 and 63 restored in their original form for clear and easy application of eligibility criteria.”

PPP leader Senator Farhatullah Babar echoes the thought. He says his party wanted restoration of articles 62 and 63 in their original form by removing all the changes made by Gen Zia. “But both the PML-N and the JI had opposed us on that. Now Nawaz Sharif has fallen victim to his own calculations,” he notes, referring to the PML-N leader’s disqualification by the Supreme Court in the Panama Papers case.

Like Babar, many also believe that the PML-N had opposed reform of the impossible-to-verify eligibility criteria in the hope of one day using the same against its opponents. The “witch-hunt” of opposition hopefuls in 2013 proved them correct. But by that time, the apex court had also disqualified Prime Minister Yousuf Raza Gilani by convicting him on charges of contempt of court for his refusal to request the Swiss authorities to reopen corruption cases against then President Asif Ali Zardari.

Ironically, Nawaz Sharif didn’t even learn when the PTI moved the Supreme Court for his disqualification more than two-and-a-half years ago on charges of lying on the floor of the house on the issue whether he had asked the armed forces to mediate and become a guarantor between the government and protesting parties PTI and PAT to end their sit-in on Constitution Avenue. There are fewer signs about whether he has learnt any new lessons after his disqualification.

In an additional note on a detailed judgment that explained reasons for dismissing a set of identical petitions seeking Nawaz Sharif’s disqualification in December 2014 by a larger Supreme Court bench, Justice Asif Saeed Khan Khosa had stated: “… even if some constitutional clauses were difficult to address and implement, the judiciary had to use them as long as they were there.”

It seems that the politicians are still not prepared to learn from history even after sacrificing two prime ministers. Although PML-N supremo Nawaz Sharif, Prime Minister Shahid Khaqan Abbasi and some other top PML-N leaders have indicated that they are willing to consider changes to the controversial provisions of the two articles, no serious effort has been launched as yet. Of late, even Nawaz Sharif’s key ally Maulana Fazlur Rehman has also voiced his opposition to amending the two contentious articles.

“I’m not aware if the party is deliberating on amending or reforming articles 62 and 63,” notes PML-N leader Mushahid Ullah Khan. “Nothing has so far been discussed seriously at any level. If it is being considered, it has to be within a small circle of the leadership.”

The PPP has termed the recent statements by the PML-N leadership on the issue as political expediency. “The PML-N outburst against the provisions of articles 62 and 63 is mere political expediency; it isn’t driven by principles,” contends Senator Babar. “Still we will like to consider their proposal if and when they bring it to the parliament.”

While the PML-N has shifted slightly from its earlier position on the controversial clauses of these articles, the JI remains steadfast on its opposition to any effort to tweak the eligibility regulations. “These articles lay down criteria for leadership of Islamic Republic of Pakistan. You cannot allow anyone who doesn’t believe in ideology of Pakistan or who isn’t a righteous and sagacious Muslim or who are corrupt and dishonest,” insists JI leader Liaquat Baloch.

According to Baloch, all the provisions listed in the two articles are verifiable and quantifiable. “Political parties should see to it that their candidates meet these requirements and voters must elect only those who have unimpeachable character and true Muslims.” But he agrees that the electoral officials shouldn’t be ones interpreting these provisions. “Only the courts should have the right to interpret them (to avoid confusion and criticism).”

How political interests drive politicians away from their stated positions is manifest in PTI chairman Imran Khan’s capitulation on the issue. Several years ago, he had told Indian journalist Karan Thapar that it was “ridiculous to invoke articles 62 and 63 of the constitution … in my opinion, I can take out the entire assembly on articles 62 and 63 because you literally have to be an angel to pass that.”

But the times have since changed and the PTI leader has become perhaps the most ardent supporter of Ziaul Haq’s legacy — without realising that one day the same weapon could be used to throw him out of politics. Since the law has helped him get Nawaz Sharif evicted from office — a feat he could not achieve through other means — Khan has been singing its praises.

Unless political parties realise what kind of challenges articles 62 and 63 in their existing form pose to them, the pompous ‘defenders of the constitution’ will continue humiliating and embarrassing people such as Sadia Rana, and setting new standards for who we should vote for.

The writer is a member of staff

Published in Dawn, EOS, September 1st, 2017