A CONCEPTUAL ANALYSIS OF ARTICLE 62(1)(f)
OF THE CONSTITUTION OF THE ISLAMIC
By:
AIMEN TAIMUR
Course Coordinator/
aimentaimur@sil.edu.pk
Judicial Approach to Article 62 (1) (f) and the
The procedure of understanding the
merits or the faults of a piece of legislation begins with the observation of
its application. It is paramount to study the pattern of the approaches taken
by the courts over the years to construe the law. It is through this
application that we can see a clear cause and effect relationship between the existence
of the Article in question and its actual effect on judicial inclination.
1.1 Application of
Article 62 (1) (f)
The Pakistani courts have struggled
with the application of Article 62 (1) (f) and it took a fair amount of time
till the courts fully grasped the volatile nature of the legislation. However,
the courts decided early on to limit the ambit of the application of the
Article in an effort to curtail the risk of abuse of this disqualification
clause[1]. The judiciary’s
role was truly put to test in 2013, and the events leading up to the second
general election after the eight year long martial law rule by General Pervez
Musharraf and the five-year full term government by the right wing Pakistan
People’s Party. In addition to the election, the now fully restored judiciary
openly embraced its new power to dismiss parliamentary candidates on the basis
of the disqualification clause. The Returning Officers of the Election
Commission of Pakistan, who are judicial officers by profession, were entrusted
with the task of selecting parliamentary candidates on the basis of the
constitutional requirements and the rules codified in The Representation of the
People Act 1976[2].
Presently, a few cases will be
included to understand the situations in which it was seen fit by the higher
courts to apply Article 62 (1) (f). The most commonly occurring scenario was
when the parliamentary candidates would fraudulently portray educational
qualifications on their applications or would resort to forging their degrees. As a response the Supreme Court in Khalid Pervaiz Gill v Saifullah Gill[3]and the Quetta High Court in Munir Ahmed v Election Commission of Pakistan[4] ruled
that the parliamentary candidates were not ‘honest and ameen’ about their
educational profiles therefore they were not qualified to hold the public
office. Consequently, the candidates were restrained from contesting in the
election. Similarly, when a candidate in
Sadiq Ali Memon v Returning Officer
NA-237[5] failed to disclose his dual nationality and had not
disclosed this information while contesting in the previous election, the
Supreme Court ruled that he was no longer ‘honest and ameen’ and incapable of
being a member of the parliament.
Another interesting application by
the court before the 2013 election was when the former Military Dictator
General Pervez Musharraf who had toppled the duly elected government, dismissed
an entire superior judiciary, shut down the free media and used the 17th
Amendment maliciously to validate his position before the new government could
start functioning, tried to contest in the election. In Syed Pervez Musharraf v Appellate Tribunal For General Election 2013,[6]the Peshawar High Court ruled that in addition to charges
of constitutional abrogation and criminal cases pending in the courts including
high profile murders, the candidate had earned a life time disqualification for
contesting the election for both the Parliament and any other public office.
The candidate’s history was against him and he clearly did not fulfill the
‘honest and ameen’ criteria. The court prevented a military leader to come into
power again using Article 62 (1) (f).
However, the sad reality is that it took the courts of
Additionally, a frequent ground for
disqualification was concealing the source or the amount of financial income.
In Muhammad Ashraf v Returning Officer
Constituency No- NA 95[7]the appellant concealed his agricultural assets, which
deprived the candidate of the necessary eligibility criteria prescribed in
Article 62 (1) (f). Declaration of all assets is a requirement and the
fraudulent suppression of the information violates the requirement to be
honest. Furthermore, Usman Ibrahim v Returning officer NA-95[8] stands authority for when a candidate’s declared income
does not tally with the actual income, they would not qualify to be ‘honest and
ameen’.
On the
other hand, a large number of disqualifications were overturned as a result of
the Returning Officers acting disproportionately and disqualifying candidates
even on the basis of not being able to properly recite Quranic Verses or
failing to answer general knowledge questions.
An example of the Returning Officers overstepping their authority was in
the case of the disqualification of a senior politician Ayaz Amir, on the
content of his journalistic writings[9]. Although Ayaz Amir’s disqualification was overturned by
the Election Tribunal Bench Rawalpindi, it is evident how inconvenient it must
have been for his political campaign. The Returning Officers have been using
their power to disqualify candidates without the proper due process that courts
employ. This is a direct violation of the right to a fair trial under [10]Article 10-A of the 1973 Constitution. In spite of the fact
that the decisions of the Returning Officers can be appealed, it is still
confusing what the standard is to disqualify candidates in different
situations, before the instant decision is appealed and taken to court. This
also brings about the fear of abuse of power due to the excessive room for the
discretion given to the Returning Officers and the subjective moralistic nature
of the ‘sadiq and ameen’ clause.
Before
the 2013 election the Judiciary had just received its independence and although
many decisions based on the ‘honest and ameen’ clause seem to be based on
logical judicial reasoning but the careless application of the disqualification
clauses by the returning officers shows the lack of maturity and experience on
their part. The judicial officers were still learning to understand the
application of the ‘honest and ameen’ clause along with the other
disqualification clauses. They were on the edge of falling into the trap of
widening the ambit of application of a linguistically challenging clause. The
research will now move forward on the timeline and scrutinise the judicial
approach directly before and in the landmark Panama Papers Scandal Case.
1.2 The
The beginning
of the chain of events that finally lead to the disqualification of the former
Prime Minister of Pakistan Muhammad Nawaz Sharif was the winning of the 2013
general election by Pakistan Muslim League-N (PMLN) and the opposition in the
Parliament being headed by
In context to the aforementioned
state of affairs, the matter finally went to court with the emergence of the
11.5 million financial and legal records famously known as the ‘Panama Papers’.[11] This international cyber leak revealed that the Sharif
family was in possession of offshore companies and multiple undisclosed assets.
After multiple investigations,
excessive media attention and strategic political manoeuvres the unanimous
judgement by one of the most accomplished benches of the Supreme Court in the
history of
Moving forward with the judgment,
Justice Khosa referred to the concerns he had raised regarding Article 62 (1)
(f) in his prior judgment of Ishaq
Khakwani v Mian Muhammad Nawaz Sharif[13]. He quoted his statement where he said regarding the
unascertainable nature of internal morals, that
‘It is proverbial
that the Devil himself knoweth not the intention of the man’.
In order to eliminate the room for
critics to call out the hypocrisy he justified his statement through two major
arguments. He stated that in the contemporary society of
Coming to the positive case for
Article 62 (1) (f), he gave the credit to the courts for managing to apply such
an uncertain clause over the years to the best of their abilities. He then made
an observation in favour of the presence of such an Article by reverting to the
Objectives Resolution 1949[14], which has been the basic framework of all succeeding
constitutions. It was the Objectives Resolution that established the Muslim
faith as the grundnorm of
In relation to his previous point,
Justice Khosa also highlighted the function of the Article, which is the
‘cleansing of the fountainhead’ that should theoretically have a trickle-down
effect further cleansing the whole system of immoral and unfair practices. He
then addressed the issue of the application of the Article by declaring that
with time the jurisprudence had evolved to the point where it could assist with
the interpretation. Hence, now the Article should not necessarily be approached
with the same hopelessness as in the past.
To further clarify the approach in
application of Article 62 (1) (f), case law was employed. Starting with Nawabzada Iftikhar Ahmad Khan Bar v Chief
Election Commissioner Islamabad[15] it was reiterated that the Parliament was one of the
noblest of the organs of state and it had the power to shape the destiny of the
nation therefore it would be fatal to permit a candidate who had lied about
their academic qualifications into such a respectable institution.
After substantiating the need for
‘morally upright’ individuals for a ‘morally upright’ institution, Rai Hassan Nawaz v Haji Muhammad Ayub[16]was referred to so that it could be shown that the
declaration of personal assets was the benchmark of public honesty that every
candidate is to achieve. Justice Khosa went on to comment that if a politician
was to fraudulently conceal their assets in other democratic jurisdictions then
they would usually either resign from their post or taken to task by the
accountability bureaus. However, this is not the same in
Lastly,
the final two authorities Justice Khosa relied on for the application of
Article 62 (1) (f) are judgments by the former Chief Justice of the Balochistan
High Court, Qazi Faez Isa. In Molvi
Muhammad Sarwar v Returning Officer PB-15[17] the petitioner lied about qualifying as per Article 62 (1)
(f) under oath. Isa CJ devised a distinction between two types of lies. He
classified them as a malicious lie intended for an expected benefit and a
non-malicious lie not intended for a potential advantage. In the second case Obaidullah v Senator Mir Muhammad Ali Rind[18]it was held that the Article 62 (1) (f) applies to the
public morality and not the private religious conduct of the parliamentarians.
Justice
Khosa used these two judgments to ultimately conclude that the purpose of the
Article is to prevent thieves, embezzlers and fraudsters from entering the
noble Parliament. He then went on to say that since Nawaz Sharif had been a
public figure for the past 36 years and the charges against him were those of
corruption so the stringent tests set in the preceding authorities were
satisfied.
In his
ending remarks on the application of Article 62 (1) (f) Justice Khosa quoted
Lord Reid’s statement in Haughton v Smith[19] that
‘The law is sometimes called an ass it cannot
be so asinine as that.’
And
another statement from the judgment in Rashad
Ehsan v Bashir Ahmad[20]that
‘The law sometimes is called an ass but the
judge should, as far as it is possible, try not to become one’.
The point
he was trying to make was that in the present case Nawaz Sharif failed to
produce the records of his proprietary transactions although he had previously
assured the court that he did have all the records. Hence, his honesty could
not be established and it was not difficult for a judge to see through the
frivolous stories spun by the respondents. Also, he mentioned that in such a
clear-cut incident of a lie being proven, the debate of the interpretation of
Article 62 (1) (f) was negligent when the obvious intention behind the presence
of the Article was being fulfilled.
In a recent development the Supreme
Court passed two judgments on 15th December 17. This time in cases
initiated by the embittered Government against two opposition leaders. In Muhammad Hanif Abbasi v Imran Khan Niazi[21], it was held that the opposition leader was not the alleged
owner of an undisclosed offshore company. While in Muhammad Hanif Abbasi v Jahangir Khan Tareen[22], the respondent’s statements led the court to decide that he
was not an honest person and ruled on giving him a life time disqualification
under Article 62 (1) (f). It is interesting to note that the court gave two
different judgments in seemingly similar situation. So is it down to the
accused being the most convincing while defending their honesty? Or is there
another objective method that the courts can use to ascertain that the
individuals are ‘honest and ameen’? Is it fair for the courts to give lifelong
disqualifications on instances where politicians cannot prove their moral
aptitude?
Conclusion and Recommendations
The last section aims to structurally
state the potential solutions to the research question in light of the
previously analyzed and accumulated data on the topic. The research sought the
answer to the pressing issue of whether Article 62 (1) (f) of the Pakistani
Constitution should be left as it is, amended or repealed altogether.
2.1 Repealing the
Provision
After understanding the historical
roots of the Article, observing its role in the Panama Paper’s Scandal case
along with the general judicial statutory interpretation and an overview of the
international approach to similar legal situations, there is hope that this
research will present a practically feasible exposition of a remedy.
Initially,
if it is considered that Article 62 (1) (f) is to be removed from the
Constitution, a few advantages can be observed. Since all problems regarding
the Article arise due to its presence in the Constitution, naturally its
removal will eradicate a majority of the issues. Furthermore, the removal will
also contribute to political stability since as witnessed in the Panama Case,
political opponents will stop leaning on the ‘qualification test’ to avenge
their losses in the election[23]. Another sensitive matter of the judiciary usurping its
power by disqualifying the members of the Parliament will also be solved and
the Parliament will maintain its supremacy[24]. This would result in a clear hierarchy in the
institutional structure, with the representatives of the nation taking the top
tier, which is the basic idea of a democratic society. Historically, this
Article was put in place by the military dictator General Zia Ul Haq, during
his Islamization movement as a shackle for Parliamentarians. The hypocrisy is
quite evident, where it can be seen that a military dictator who came into
power by force was immune to the qualification test that he set down for the
future ‘democratically’ elected leaders of the Islamic ‘Republic’ of Pakistan.
Keeping in mind the dark history of the Article, it will only be beneficial to
repeal it for the sake of democratic growth.
As the
research has established so far, the Article is open to interpretation and case
law suggests an irresponsible usage of the qualification criteria by the
returning officers during the 2013 general elections. Such a misuse can
seriously stain a politician’s career, as a spotless public image is imperative
for a successful political campaign. Similarly, any open-ended law in general gives
excessive discretion that can do more harm than good.
The hype
that is given to such cases may result in a ‘political witch-hunt’ due to the
Supreme Court independently prosecuting politicians who are allegedly not
‘honest and ameen’[25]. Such instances severely contribute to the pre-existing
issue of the separation of powers in the Pakistani governmental layout, along
with the hampering of the process of the Parliament to reach a certain level of
self-accountability.
An article written by Justice Khosa about
Article 62 (1) (f), 30 years ago, as a young lawyer must also be considered
since it speaks of how impractical it is for such a clause to exist in the
Constitution. He says that expecting ‘sinful mortals’ to live up to the
Prophetic tradition of being ‘honest and ameen’ is not realistic[26]. Conversely, he devices a test and justifies the presence
of this Article now that he is a Supreme Court judge. This goes to show that
this clause is as confusing for lawyers as it is for legal commentators.
However, judges are not ready to depart with the discretion that this Article
gives to them over the Parliamentarians. This brings about a fear of the misuse
of the ‘honest and ameen’ clause and a likely insidious impact. It is also
vital to note that the judiciary is exempt from being tried under this Article[27]. Theoretically, this gives unrestricted power to the
judiciary and yet fails to put the necessary checks and balances to prevent
possible injustice.
The Constitution itself dictates in
Article 8[28] that any law inconsistent with fundamental rights is void.
Resultantly a law that prevents a democratically elected leader to be dismissed
from his legitimately acquired right to rule could arguably be considered to be
voidable. Having an inconclusive Article in the Constitution meddles with the
sanctity of such a nationally sacred document. Therefore, the removal of such
an Article will be helpful in eliminating future contention on the meaning and
applicability of the concept of ‘honest and ameen’. It should however not be
ignored that this solution will create numerous unprecedented situations which
have been so far avoided due to the presence of the disqualification test.
2.2 Allowing
the Provision to remain as it is
Coming
towards the second solution, if it is argued that the Article is allowed to
remain, as it already exists then even this solution is not without its
advantages. Logic dictates that in a noble institution such as the Parliament,
it is only fitting that its members fulfill the basic requirement of being
trustworthy and loyal enough to handle their responsibilities. Majorly this
demand is justified because by delegating the power to represent themselves,
the common citizens give up a part of their autonomy as well their natural
equality to the representatives therefore the threshold of such representatives
must be high[29]. This act of making
a ‘delegate’ and setting up these representatives a part of a 'constituent
body’, demands special procedures to be put in place to ensure that only the
non-corruptible and morally strong politicians get the mandate to rule[30]. These representatives belong to a system of
representation which represents a society aspiring to be ‘honest and ameen’ so
the leaders are expected to fulfill that standard[31].
Moreover,
the law of the land impartially binds an average citizen of ordinary
fortitude. The acts condemning criminal
behaviours set out punishments for those who conceal the truth or commit fraud
in their dealings. In Section 436 of the Pakistan
Penal Code[32], producing forged or false documents is not only
punishable by a fine but also imprisonment for up to two years. Thus, it would
be unjust to let parliamentary candidates get away with committing crimes that
a commoner would seriously be charged with. The Constitution reflects the
national legal framework and a strong lack of congruence will arise if a gap is
developed between the social integrity expected from the public and the elected
leaders. Unfortunately, if lower behavioural standards were kept for
politicians then
It is also
an interesting correspondence that wherever the Article is used, it is usually
applied in conjunction with another violated law. In the Panama Papers Scandal
case, Nawaz Sharif was charged with the concealment of assets and then that
concealment resulted in the court ruling that he was not ‘honest and ameen’. If
Article 62 (1) (f) is used in this manner then the finding that it is
subjective in nature would not actually be that severe as its application is
dependent on the objective establishment of a separate crime. So, the Article
is in fact an umbrella under which, most criminal activities commissioned and veiled
by parliamentarians and parliamentary candidates are reprehended.
Accordingly,
with the observations made above, it is absolutely necessary that the judges
make use of a responsible and moderate judicial interpretation instead of
indulging in unwarranted disqualifications. Similarly, it is suggested that the
test for the application of Article 62 (1) (f) used in the Panama Papers
Scandal case be used, as it will help the jurisprudential reasoning mature,
which will further refine the method for the application of the Article for
judges across the country.
Yet again,
another factor to be contemplated is that after the inception of Article 62 (1)
(f), the Constitution has gone through instances of serial amendments. A
prominent and the latest occurrence of this being the Legal Framework Order
2002[35] during the military rule of General Pervez Musharraf.
Although, quite a few amendments were made to supposedly strengthen the
democracy but none of these amendments touched Article 62 (1) (f). The question
does arise that why has neither the Parliament nor any dictator taken any
action to clarify the ‘honest and ameen’ clause in the past. This might be
because it could be foreseen that repealing such an Article would be met with
technical difficulties and much displeasure.
This Article
is the only mechanism that can be used to hold corrupt and fraudulent
politicians accountable simply for their inability to stay true to the Islamic
fundamentals upon which
2.3 Law
Reform
The last and
the most practical solution is two fold. It requires a legal action on part of
the Parliament and some judicial activism as well. If we fuse the above two
solutions in one practical guideline to minimize the separate detrimental
effects of the opposite approaches of each solution, we can finally reach the
safest route to take. Firstly, the matter of interpretation can only be
resolved by an elaborate clarification. An Act of Parliament can bring this
about by clearly stating the circumstances and situations under which Article
62 (1) (f) can be invoked. The new Act should objectively define the terms
‘honest and ameen’ so as to curb obscurity.
The Act
should also mention the variety of crimes which could result in
disqualification due to the Parliamentarians or the Parliamentary candidates
not being ‘honest and ameen’. Not only will the creation of an Act maintain
Parliament’s supremacy because a proper legislative channel will be followed,
but it will also set a strong accountability mechanism that would be approved
by the legislature and applied by the judiciary. Since, the vastly
interpretative nature of the Article can be dealt with by the introduction of
an Act, the role of the judiciary comes into play next. The judiciary should in
fact send recommendations to the Parliament before the finalization of the Act.
This way the judges will ensure that the law is such that it is not just
workable in theory but it is also court friendly. Although it is the job of the
legislature to solely draft and approve laws, the judicial intervention will
merely be advisory and will have no effect on the final act whatsoever.
However, the recommendations by Supreme Court judges will assist with the new
law being as practical as possible because it is the judges who apply the law
and they would appreciate the potential issues that could arise in judgments
and in interpretation by lawyers.
The above
solution is more of a need in this system of electoral politics where
rationality and objectivity should command the subjective clauses that seek
morality in the leadership[36]. But just like all potential solutions, the process of
bringing about such an Act will be tricky. This is due to the fact that the
self serving Parliamentarians cannot be expected to let an Act come into being
that would increase the chances of them being disqualified.
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