Daily Times

Former Prime Minister Nawaz Sharif’s disqualification has once again highlighted the possible dangers posed to the democratic health of the polity by amendments made by military dictator, General Ziaul Haq, in constitutional articles concerning qualifications and disqualifications of members of the Parliament.

Irrespective of the details of accusations against Nawaz Sharif and his family, which have now been referred to relevant courts, his disqualification — like that of former Prime Minister Yousaf Raza Gillani in 2012 — has proved that Articles 62 and 63 of the Constitution are a Damocles Sword hanging over the heads of parliamentarians in the same way as the notorious Article 58 2-B once used to.

When he ‘restored’ the Constitution in 1985, General Ziaul Haq made numerous amendments in the document, completely changing its character. The objective was to enable him to remotely control the Parliament and the government from the Presidency and/or Army house.

Amendments in the Article related to qualification and disqualification of members of Parliament were aimed at controlling individual MPs.

When he had imposed the martial law in 1977, Article 62 of the Constitution provided only that any citizen of Pakistan, not younger than 25 years of age and registered as a voter, could contest elections for the National or a provincial assembly. The disqualifications explained in the following Article were that he or she should not have been declared, by a competent court, as an insolvent or of unsound mind or taken nationality of another country.

Both articles provided that an act of Parliament like the Representation of People’s Act of 1976 could provide for further qualifications and disqualifications.

These criteria were clearly laid out, objective and quantifiable. Nothing was left to whims or subjective interpretation of administrators and judges.

But, anything clear and objective does not serve the purpose of dictators, so General Zia’s regime inserted following clauses in Article 62: “A person shall not be qualified to be elected or chosen as a member of Parliament unless (d) he is of good character and is not commonly known as one who violates Islamic Injunctions; (e) he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins; (f) he is sagacious, righteous, non-profligate, honest and ameen, there being no declaration to the contrary by a court of law; and (g) he has not, after the establishment of Pakistan, worked against the integrity of the country or opposed the ideology of Pakistan.”

These gave rise to questions like who would decide whether someone’s character is good or bad? If someone objects to my character, how can I prove him or her wrong? What is adequate knowledge of Islam? Would knowledge about daily prayers be sufficient? If yes, according to what sect? Someone might say the MPs should have knowledge of holy Quran, Hadith and Fiqa. Would you hold competitive exams to judge that, and only those passing it would be allowed to stand in elections?

During the filing of nomination papers for 2013 general elections, we saw the fallout from these additions to the Constitution when returning officers were reported asking candidates to recite verses from the holy Quran and disqualifying them for failing to do so. They were later allowed to contest elections by the judiciary.

Regarding the clause on sagacity and righteous of members, there are questions like how may a person once declared dishonest or profligate later prove that he has been reformed? Who would judge that he was right in claiming that?

This clause is being debated after the Panama Papers judgement. Most jurists believe that Sharif’s disqualification is permanent in nature. We have yet to see any judgement of superior courts on the issue. Unfortunately, our courts have not been consistent in interpretation of different provisions of the constitution so even if today the court says that disqualification is not permanent, in future it may declare otherwise.

Voices in support of democratic governance in the country have been calling for restoration of the Constitution in the form it existed before Zia years. However, these voices have not had sufficient majority in the Parliament to effect such a change. Those enjoying such majorities on different occasions have been too obliged to the legacy of Zia to allow change.

With 18th Amendment, the Constitution was purified of most of the absurdities inserted during Zia and Musharraf years. However, certain amendments inserted during Zia’s rule including those in articles pertaining to qualification and disqualification were not touched on the pretext that those were ‘Islamic provisions’. The ousted Prime Minister Nawaz Sharif, his party and his ally JUI-F, besides Jamat-e-Islami, had opposed removal of these amendments. The recent decision against Nawaz Sharif should be enough for the PML-N to change its mind.

During the filing of nomination papers for the 2013 elections, we saw the fallout from Zia’s constitutional amendments when returning officers were reported asking candidates to recite verses from the Holy Quran

We don’t just require Articles 62 and 63 to be restored to their original form but also Article 2-A, besides amendments related to the Federal Shariat Court that needs to be revisited.

There had been nothing so sacrosanct about the Objective Resolution when it was passed, and that should be the way its looked at today as well. The Council of Islamic Ideology and the country’s judiciary were already performing the role envisioned for the Federal Shariat Court. The sharia court is just an extra burden on public exchequer and should be done away with.

One hopes that political leaders will perceive dangers posed by Zia-era amendments and make necessary changes to the Constitution before the next general elections.

Another important issue the Parliament will have to look into is that of Article 184 of the Constitution, especially its third clause. The ambit of this provision has been expanded too much. Most cases of political nature are dealt with under this provision and with each new decision its scope gets widened. It is about time the legislature re-visits the Article to settle at a proper scope of the said provision.

The writer is a freelance columnist

Published in Daily Times, August 2^nd , 2017.