Panama Aftermath – A Need For A Constitutional Amendment
The Panama Saga has finally come to an end (though one can, in the light of the references sent to NAB and the possibility of reviewing the decision by Nawaz Sharif, reasonably say it has just started). Either way, the much-hyped trial ended with a populous decision by the apex court which, inter alia, resulted in the disqualification of Nawaz Sharif under Art. 62(1)(f) of the Constitution and S. 99(f) of The Representation of the People Act, (ROPA) 1976.
Perhaps the decision could be seen as the first step towards establishing a culture of political accountability of the rulers. Probably it is because of this very reason that the decision has been embraced with happiness by a considerable amount of people but, unfortunately, there is only a minority which appreciates the dangerous repercussions this precedent will have in the near future.
Hence this article will try to establish that the decision of Imran Khan Niazi V Mian Muhammad Nawaz Sharif regarding the disqualification of the former premier, has its foundation upon a law which is of indefinite character, not in line with the doctrine of separation of powers and rule of law, and is capable of having adverse effects in the future on the democratic system of the country and therefore, a constitutional amendment is needed immediately. I would also, in the end, address the possible ways in which these troublesome provisions of the law can be made sterile under a constitutional amendment. It must be noted that during the course of this article I will only be focusing on Article 62 and not the ROPA provision as the subject matter of both is almost identical [2013 CLC 1583].
History & Scope:
Art. 62 and Art. 63 of the Constitution, concerning disqualification of a member of the Parliament, came into existence during General Zia’s regime through the infamous Presidential Order No.14 of 1985. After the 2009 elections, an effort was made by the Peoples Party government to remove Art. 62 and 63 through a constitutional amendment, but ironically at that time PML-N along with JUI-F and JI opposed the PPP’s proposition and eventually was successful in retaining the controversial articles.
Art. 62 lays down the qualification criteria of a member of the Parliament and any disqualification done under this article is of a permanent nature, whereas Art. 63 deals with disqualification criteria for a member of the Parliament and as opposed to its preceding article, some of the disqualification provisions of Art. 63 are of temporary nature [2013 SCMR 1271].
The Case Against the Qualification Criteria – Criticism in Light of Pakistani Jurisprudence:
“This case is the first of its kind…we know the gravity of a declaration by the court & its effect for both the parties, saying that someone wasn’t honest. But we have to lay down parameters, otherwise, except for Jamat-i-Islami chief Sirajul Haq no one will survie.” – Justice Asif Saeed Khan Khosa.
This was a comment made regarding Art. 62 & 63, by the senior most judge of the bench during the hearing of the Panama case – although admittedly taken back by the honorable judge shortly afterwards but, to my dismay, even after appreciating the need for set parameters the judge didn’t lay any concrete parameters. These remarks of Justice Khosa alone are sufficient to establish my argument that the law laid down in the qualification article is a dangerous one and fraught with serious concerns but nonetheless, I will go on and examine the case law on the matter to establish with the conviction that Art. 62 really is a bad law and needs to be given attention at the earliest.
In PLD 2015 SC 275, a case regarding disqualification of ex-PM Nawaz Sharif on the basis of contradicting statement to ISPR in relation with army offer to hold talks with PTI to finish the sit in, Justice Asif Khosa while commenting on the scope of Art. 62 and 63 cited an old article which he had written when he was young (PLD 1988 JOURNAL 272 – Qualifications for Candidates: A Constitutional Puzzle) and admitted that the ‘vague, uncertain, obscure and conflicting terminology’ used in Art. 62 & 63 are still existent and are ‘a result of bad draftsmanship or ignorance of the requirement of exactitude so essential to all legal and constitutional instruments’. Moreover, he quoted Montesquieu’s famous saying, ‘useless laws weaken necessary law’ and concluded his argument by observing that ‘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.’ Justice Khosa’s comments on Art. 62(1)(f) are of extreme importance and therefore, I must quote him extensively here.
“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 requirement qua being ‘honest’ and ‘ameen’ have a clear reference towards the Holy Prophet’s (p.b.u.h.) 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 upto 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 in the State of Pakistan as a sacred trust. But, instead of being idealistic, the Constitution of a country should be more practicable. The line of prophethood has long been discontinued and now we are left with sinful mortals. The political arena in our country is full of heavyweights whose social and political credentials outweigh their moral or religious credentials. Even the electorate in our country has 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.”
2013 CLC 1461 is a case which illustrates the dilemma faced by the judges – on one hand, they have to accept the supremacy of the Constitution and therefore, are very reluctant to declare a supreme document as defective or lacking clarity, while on the other hand, their interpretation of a law which is not clear results in inevitable confusion. In this case, Munib Akhtar J accepted the fact that Art. 62(1)(f) carries and conveys different shades of meaning which can overlap, but termed it as clear law on the basis that it only needs ‘the sagacity, righteousness, non-profligacy, honesty and trustworthiness of every man that is a candidate for election to public office must display and nothing other or greater than that.’ Now with all due respect to the Justice Akhtar; I understand the fact that he is bound to follow the Constitution as it is something even above him, in my opinion, the judge is just trying to make sense of something which doesn’t make any and in the process, unfortunately, more confusion is being created.
There are some cases which admittedly have defined what all Art. 62 entails and though that can certainly be counted as clarity, it still does not help to make the standard static and predictable. In 2010 CLC 1692, the honorable judge reiterated some things which would come under the ambit of Art. 62(1)(f), it includes ‘unfair means in earning’ and procuring educational documents, but again gave a vague statement which didn’t lessen the complexity and confusion surrounding the eligibility articles,
“The concepts projected in using all the above terminology is not difficult to understand. It demonstrates a keen desire of the Constitution that persons desiring to engage themselves in the process of law-making of the country must themselves be possessed with high qualities of personal character and moral values.”
While I was researching for this article, I came across a pretty interesting Judgment delivered by Justice Qazi Faez Isa when he was the Chief Justice of Balochistan High Court [2013 CLC 1583]. While assessing the question of disqualification under Art. 62 CJ Isa said that lies could fall into two categories: those uttered to deceive and to gain an advantage, as opposed to innocent lies without malice or any intended deception and where no benefit or gain accrues. This categorisation hinted that the latter type of lie would not be covered under Art. 62. This judgment does join the list of other cited judgments which show the indefinite character of Art. 62 and 63, but the interesting bit can be found in CJ’s description regarding the type of lie which would apparently not qualify under Art. 62 as from which ‘no benefit or gain accrues’ – considering the fact that the recent disqualification has been done on ‘unwithdrawn assets’ which in reality was not withdrawn and hence no benefit or gain was there.
As a little political flavour has seeped inside our conversation, it would be worth mentioning PLD 2013 LAH 552. Justice Ijaz Ul Ahsan (One of the judges who were part of the bench that gave the Panama decision) commenting on the scope of Art. 62(1)(f) said that under Art. 17 of the Constitution, there is a fundamental right to contest elections and therefore 62(1)(f) has to be ‘strictly construed’. Now probably it seems that my understanding of ‘strictly construed’ is much narrower than that of the honourable judges and probably to include ‘unwithdrawn receivables’ would be an example of construing very leniently.
The last case I will be citing from the Pakistani jurisdiction is yet another one with a possible political taste. I believe it will be apt to mention here that I am no PML-N fan boy and only am trying to construct a legal argument. Anyways, the court in 1998 MLD 1948 rejected to disqualify under Art. 62 and 63 for the reason that the respondent had failed to mention his ‘mere involvement’ in a case/FIR. The court was of the opinion that mere involvement in an FIR cannot form the basis of passing judgment on the character of a person within the meaning of Art. 62 and 63. So after assessing this case and the preceding two cases, the question arises how does one justify an unwithdrawn receivable to be powerful enough reason for the disqualification under Art. 62(1)(f), but more importantly the unclarity regarding the threshold under the provision is worrying.
Miscellaneous Arguments & Thoughts:
Art. 62 (along with Art. 63) are against the concept of Rule of Law. The doctrine is endangered by the provisions enshrined in Art. 62 as it gives Judges a huge amount of discretion to pick and choose which person possesses a good character or not and the law itself regarding the subject matter is not predictable and hence this results in an application of the same in an unequal manner. All this is in conflict with at least three of the eight points laid down by Lord Bingham in his book titled ‘Rule of Law’, which describes the doctrine in a very detailed and comprehensive manner.
There is no denying the fact that the judiciary is indeed an important part of the state but it has to be remembered that it is, after all, a non-elected body not having the collective will of the people directly embedded in them. Hence, in a democratic society, giving judges an unfettered discretion in assessing whether a directly elected member is of good character or not is in my opinion not reasonable at all. It must be noted that I do not oppose the judicial scrutiny rather it is its indefinite character which worries me.
Moreover, realistically speaking, if one looks at our current Parliament or for that matter its predecessors, one cannot be reasonably optimistic about the fact that most of our elected members would be able to survive under the provisions of Art. 62 and 63. About 95% of our politicians are labelled with white collar crimes, fraud, deceit and many other controversies; if everyone of them is taken to the court on the basis of the said law, we would only have empty chairs attending the next session. It is probably unfair to criticize politicians in such a harsh manner; it has to be understood that the people sitting in the National Assembly are human beings too and no one can be perfect. According to the Bible, a woman was brought in front of Jesus Christ and it was alleged that she was a whore. The crowd demanded that she should be stoned. Prophet Moses (PBUH) approved and said: the first stone should be thrown by a person who had never committed a sin. Hearing this, the people started hiding. This is the law under which Ayaz Amir (A renowned journalist and a well read man) was held not eligible on the grounds that some of his articles were ‘against the ideology of Pakistan’.
Lastly, but not in any way of less importance, the criteria under Art. 62 and 63 is a nothing less than the sword of Damocles for the democratic institutions and democracy itself.
Proposal for Reforms:
One of the most common proposals regarding Art. 62 and 63 is to repeal and wipe out the two articles from existence altogether. However, I do not agree with this course of action. Although admittedly most of the progressive nations have no provisions similar to the eligibility criteria laid down in our controversial articles [PLD 2009 SC 107], but nonetheless in my humble opinion, in a country like Pakistan there is a need for a well laid eligibility criteria regarding the people who are going to lead us and thereby will ensure that all the institutions are kept in check and are accountable to each other.
In view of the above, I would propose that through a constitutional amendment three subsections of Art. 62 should be revoked as in my opinion, it is not humanly possible to interpret the said articles in a concrete and consistent manner – these three subsections being 62(1)(d), 62(1)(e) and 62(1)(f). All these three subsections are based on religious and moral standards which are almost impossible to define with any sort of consistency and hence are even vaguer/wider than the concept of ‘unconscionability’ in English law. As far as the religious criteria is concerned, I would just quote Jinnah in my defence who said that “Religion has nothing to do with the business of the state”, while regarding the moral provisions in the eligibility criteria, I believe our discussion has already established the serious possible repercussions and dangers associated with its life.
In summary, we need a constitutional amendment as soon as possible to annul the above-mentioned three provisions of Art. 62 to strengthen the democratic culture in our country and to avoid any clash between the institutions in the near future. Apart from this, the legislators should try their best in making the remaining provisions more comprehensive and laying down set boundaries regarding what all the same would entail.
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.