Lacunas in legal system — some proposals

Author: Dr Khalil-ur-Rahman Shaikh

A constitution is manmade document which always needs amendment when a particular situation arises. The various amendments have been enacted in the constitutions of the U.S and India etc. The constitution of Pakistan has also more than twenty amendments since its enactment in 1973. More amendments may be introduced if need arises.

A peculiar situation emerged after general elections, 2018 in the province of Sindh. According to Article 53 (2) and 127 of the constitution, the outgoing Speaker has to administer oath of newly elected Speaker. According to article 104, in case office of Governor is vacant then Speaker of the provincial assembly shall perform the functions of the Governor. Before the election and taking oath of office of Speaker of the provincial assembly of Sindh, the Governor of Sindh, Muhammad Zubair resigned from the office of Governor and Speaker of the provincial assembly Agha Sirajuddin became acting Governor of the province. He was elected Member of the provincial assembly in elections 2018 and subsequently it’s Speaker. Here point surfaced who may administer the oath of Speaker as speaker elect was also acting Governor of the province of Sindh. The Speaker took oath under Articles 53(2) and 127 of the constitution.

In this situation, the Chief Justice of the concerned High Court may administer oath of a speaker. Because the Chief Justice administers the oath of a Governor of the concerned province when the office of Governor falls vacant then Speaker becomes acting Governor of a province. Thus, the Chief Justice may administer oath of a Speaker provided that outgoing speaker, working as acting Governor, and incoming speaker is a same person.

Article 48 of the constitution 1973 probably needs to be revisited. Its clause (2) provides, “No criminal proceedings whatsoever shall be instituted or continued against a President or a Governor in any court during his term of office”. Clause (3) says, “No process for the arrest or imprisonment of President or Governor shall be issued from any court during his term of office”. Clause (4) of the article also provides relief to President or Governor against the civil proceedings.

Article 41 (2) of the constitution provides qualification criteria for filling the office of President. The criteria includes that candidate must be Muslim, must not be below the age of forty five years and is qualified to fulfil the criteria of election of the Member of National Assembly.

It transpires that there is no bar on a candidate to contest election for the office of President or to be appointed as Governor of a province who is facing proceedings in a court of law

On the perusal of aforementioned articles, it transpires that there is no bar on a candidate to contest election for the office of President or to be appointed as Governor of a province who is facing proceedings in a court of law. On appointing as a President or a Governor he gets immunity in such cases.

Thus after the election, the President or Governor may get immunity from the cases which he was facing before becoming President or Governor. On one side the case may remain pending and at the same time other persons relating to case will have to wait for the decision of the case.

The current constitutional arrangement allows a citizen of Pakistan to contest general elections for the seat of membership of National Assembly or Provincial Assembly or Senate. Article 62 of the constitution provides the following criteria:

A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless:-

a) he is a citizen of Pakistan;
b) he is, in the case of the National Assembly, not less than twenty -five years of age and is enrolled as a voter in any electoral roll in
i) any part of Pakistan, for election to a general seat or a seat reserved for non-Muslims; and
ii) any area in a Province from which she seeks membership for election to a seat reserved for women
c) he is, in the case of Senate, not less than thirty years of age and is enrolled as a voter in any area in a Province or, as the case may be, the Federal Capital, from where he seeks membership
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 practises obligatory duties prescribed by Islam as well as abstains from major sins;
f) he is sagacious, righteous and non-profligate, honest and ameen, there being no declaration to the contrary by a court of law;
g) he has not, after the establishment of Pakistan, worked against the integrity of the country or opposed the ideology of Pakistan. Article 63 sets the criteria of the disqualification of members of the National Assembly and the Senate. Article 113 says, “The qualifications and disqualifications for membership of the National Assembly set out in Articles 62 and 63 shall also apply for membership of a Provincial Assembly as if reference therein to “National Assembly” were a reference to “Provincial Assembly”.

The above arrangement allows a person to contest election from a province even he is not domiciled of that province. It also permits a person to contest election from a constituency in which he is not registered as a voter. It has the main four implications. Firstly, a strange person, elected from a constituency where he is not registered as voter, may not pay due attention for addressing the problems of the constituency properly. Secondly, it may promote desired person to be elected from a constituency as he may not be elected from other constituency. Thirdly, a person rejected by voters of one constituency may get elected from other constituency through assistance of influentials of that constituency. Lastly, such type of election may generate political manoeuvring, deprive the voters of the constituency from their real representative and may pave the way for the corruption.

The Anti-Terrorism Act 1997 deals with actions relating to terrorism. Section 6 read with Section 2 of the Act defines acts of terrorism. It does not include “Gang Rape” an act of terrorism.

Gang Rape may be defined as a rape of one person by a group of persons. It may be committed either with male or female. The commission of such act creates harassment in the society and people feel depressed. In order to reduce the chances of happening of gang rape, the jurisdiction of Anti-Terrorism Act 1997 may be extended to deal with such type of cases. Strict policy of enforcement of punishment and implementation of law without discrimination may create deterrence against commission of crime in the society.

The writer is an author and has a doctorate in Political Science

Published in Daily Times, October 19^th 2018.