Perspective - 360°

Do Articles 62 and 63 require reforming?

Published Mar 23, 2015 06:16pm

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The son of former chief justice Iftikhar Muhammad Chaudhary, Arsalan Iftikhar
The son of former chief justice Iftikhar Muhammad Chaudhary, Arsalan Iftikhar

Lurid accusations are flying between Imran Khan, the chairman of the Pakistan Tehreek-e-Insaf (PTI), and the former chief justice Iftikhar Muhammad Chaudhary’s son, Arsalan Iftikhar. While the latter is trying to make a case against the former under the Constitution’s unfitness test — Articles 62 and 63, Khan and his partymen have taken aim at Prime Minister Nawaz Sharif as well since these articles cover lawmakers alone.

This is disappointing. It would seem each argument against the articles – that they may be invoked at any time, for any interpretation, to suit any motive – is turning out to be true. And cynical motives abound: Khan’s and his party’s criticism of Sharif and Chaudhary has already been voiced by others. Iftikhar, for his part, joins the Muttahida Qaumi Movement in bringing old allegations out of the freezer against Khan.

This is about politics, not about keeping parliament clean. Yet even the smears are substandard — if it was mudslinging they were after, one would wish they brought fresh mud. But novelty matters little in a land where the constitution allows for ‘moral’ brawls. Articles 62 and 63 of the Constitution are a primer on how not to lay the law. Back when Islamisation was in vogue, the two articles were brought in as yet another papal checklist, albeit with constitutional sanctity. Then, as now, they measured the moral standards of the parliamentarians. A bare reading lines up fatal flaws: in a legal context, the latitude for interpretation is far too broad. In plain speak, a Returning Officer (RO), that is, the interpreter (appointed from the district judiciary), is afforded enough space to bar any candidate he finds lacking in moral fibre.

And who can blame them? Prior to elections last May, the Election Commission of Pakistan neither sought an interpretation from the Supreme Court, nor gave the ROs any guidelines on the matter. Chaos ensued — bereft of a code, the ROs grilled electoral candidates on all subjects moral, from having them recite the Dua-e-Qunoot to reprimanding them for cleanshaving. Thanks to the disconnect, the candidates went through a revolving door of sin and sainthood: thrown out by the ROs but let n by the superior courts, and contesting all the same — an exercise in futility.

It is the wording of the articles that leaves such vast space for interpretation. “He is sagacious, righteous and non-profligate, honest and ameen,” reads 62(1)(f). The Orwellian 62(1)(g) merits even more attention: “He has not, after the establishment of Pakistan, worked against the integrity of the country or opposed the ideology of Pakistan.” 63(f) sounds much the same.

Serious words for a synthetic expression: what constitutes working against the ideology of Pakistan? What comprises that ideology itself? Last year’s election cycle provided practical examples: one RO held that Ayaz Amir’s newspaper columns went against said ideology. And yet sectarian parties – with all their hate speech and evil acts against each other – were given the green light. When it comes to the ‘ideology of Pakistan’, it would seem even the vilest agenda is open to interpretation.

That the articles require reforming is obvious, but previous attempts have imploded from within. The religious parties have taken notice whenever the term ‘progress’ raises its ugly head. Senator Raza Rabbani has admitted how key these parties were in scuppering any changes to Articles 62 and 63 during the drafting of the 18th constitutional amendment.

But the light is in our grasp. In an excellent ruling in April 2013, Justice Syed Mansoor Ali Shah of the Lahore High Court directed all the ROs in Punjab to refrain from putting “random, intrusive, and inquisitive questions” to candidates. As the honourable justice remarked during proceedings, “Who is to decide whose character is good, whose Islamic beliefs are sound, and who is commenting against the ideology of Pakistan?”

Parliament requires amending these articles, so as to meet the most basic requirements for enforceability. Using tangible standards, like previous convictions or fake documentation, would help. The ROs’ interpretations, meanwhile, must cohere with those of the superior courts, as and when they flesh them out.

“The rules of morality,” said David Hume, “are not the conclusion of our reason.” Hume was a great man of the Scottish Enlightenment. It may well be the time we caught up.