Menace Of Articles 62 And 63 Of The Constitution Of Islamic Republic Of Pakistan 1973

Menace Of Articles 62 And 63 Of The Constitution Of Islamic Republic Of Pakistan 1973

Sugar, spice and everything nice may well be the recipe for creating the perfect cartoon character but it is implausible to replicate the same in real life. The standards provided in Article 62 and in particular 62 (1) (f) of the Constitution of Islamic Republic of Pakistan 1973 are no different than the recipe provided above. Article 62 of the 1973 Constitution provides the eligibility criteria for becoming a member of Parliament. The aforementioned overall lays down objective standards including age and citizenship, which were also present in previous Constitutions of Pakistan, both 1956 and 1962. The insertion of terms like ‘sagacious’, ‘righteous’, ‘non-profligate’, ‘honest’ and ‘ameen‘ was one of the parting gifts by the “righteous and ameen” General Zia-ul-Haq, which made it troublesome and opened it to subjectivity. The qualities mentioned in the constitutional provision above seem to be taken out of a novel, describing an ideal character, but it is time that we differentiated between fiction and reality.

The realization of the menace caused by Articles 62 and 63 of the 1973 Constitution is not recent but is, in fact, a primal debate that was even considered at the time of the 18th Amendment to the 1973 Constitution, and the repeal of Articles 62 and 63 was ironically turned down on refusal of Mian Muhammad Nawaz Sharif, who in retrospect must be questioning his loyalties and judgment. The issue not only lies in the wording of the aforementioned provisions of the Constitution but also with the way that the courts have interpreted the same over the years. There is no cavil to the fact that the root of the problem is the subjectivity attached to the terms used in Articles 62 and 63, making them vulnerable to a non-exhaustive list of standards which are unachievable.  Regardless of how sagacious, righteous or ameen one may be, there will always be something which one will fall short of in order to achieve the perfection enunciated in Article 62.

The courts have resorted to Articles 62 and 63 time and time again to send parliamentarians home and have broadened the scope of the aforementioned provisions – whether it was Rehman Malik, who was declared to be dishonest for making false declarations while filing his nomination papers in 2008 (PLD 2012 SC 1089), or Yousuf Raza Gillani, who was held in contempt of court and consequently disqualified in terms of Article 63 (1) (g) of the Constitution (PLD 2012 SC 553). The latest causality is Mian Muhammad Nawaz Sharif who has been disqualified from being a member of Parliament on the basis of false declarations in his nomination papers filed in 2013. From issues relating to dual nationality, fake degrees, contempt of court and dishonest non-declaration of assets, everything has been analyzed by the honourable courts under the scope of Articles 62 and 63 and more often than not parliamentarians have been found falling short of the standards prescribed in the aforementioned provisions.

Ex-Prime Minister Sharif was sent packing by the honourable Supreme Court on 28-07-2017 due to his failure to declare the receivable salary of AED 10,000, which he was entitled to as the Chair of FZE Capital, Jebel Ali, UAE. The issue of whether a “receivable” can be termed as an asset was novel even for the honourable Supreme Court, as the judgment itself mentions that the term “asset” has not been defined in the Representation of Peoples Act 1976, nor has the honourable Supreme Court cited any precedent dealing with such proposition, given that the circumstances of non-declaration of receivable of salary AED 10,000 in 2013 can at most be seen as an “omission” and not “dishonesty”.

I am in complete support of sending corrupt people home, and in this particular case the Sharif family may have had it coming given the ample opportunities provided to them to prove their innocence, firstly by the people and then by the honourable Supreme Court, which they failed to avail or didn’t have much to substantiate their innocence with. The issue once again is not with wiping out the corrupt but with the way the same is achieved. Articles 62 and 63 either in their present form or whatever form they may take in the future, should provide an objective criterion for qualification as a Member of Parliament and shall not be used as a “means to an end”.

The Islamic Republic of Pakistan was created with the notion of a democratic land and it is the fundamental right of the citizens to choose their elected democratic leader. It is time we let our next elected Prime Minister complete his or her term for the first time in a short but troubled history of Pakistan.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.

Bilal Bashir

The writer is a lawyer based in Lahore and holds an LLM degree from Berkeley, USA.



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2 Comments

  1. Shafiq Abmad Nassir said:

    Good attempt on the part of the writer to elaborate Ar.62,63 and their effects.

    • InayatulkahKhan said:

      Nobody in Parliament or outside have ever said a word before the present dicision.Its now high time to debate and decide.ExPresident Musharraf was very right to ammend abuot Educational Qualification of election contestants.

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