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SC reviews changes made to Article 62 by military regimes

    ISLAMABAD: In its judgement about the length of disqualification of a parliamentarian under Article 62(1)(f) of the Constitution, the Supreme Court also compared the existing provision in the green book with the original Article 62 that was introduced in 1973.

    Justice Umar Ata Bandial, who authored the 48-page verdict handed down to former prime minister and Pakistan Muslim League-Nawaz supreme leader Nawaz Sharif by a five-judge bench headed by Chief Justice of Pakistan Mian Saqib Nisar on April 13, recalled the features of the original Article 62 before the martial law regime of Gen Zia-ul-Haq had introduced changes to it in 1985.

    The framers of the original 1973 Constitution did not envisage any Islamic provisions in any of the clauses of Article 62 or 63 to prescribe criterion to become a member of parliament. Amendments were made to the 1973 Constitution, including some meant to supplement the Islamic content of the Constitution, during the regime of Gen Zia-ul-Haq.

    According to the verdict, the original Article 62 simply says: “A person shall not be qualified to be elected or chosen as a member of the parliament unless – (a) he is a citizen of Pakistan; (b) he is, in the case of the National Assembly, not less than 25 years of age and is enrolled as a voter in any electoral roll for election to that assembly; (c) he is, in the case of Senate, not less than 33 years of age and is enrolled as a voter in any area in a province or, as the case may be, the Federal Capital or the Federally Administered Tribal Areas, from where he seeks membership; and (d) he possesses such other qualifications as may be prescribed by the act of parliament.”

    Similarly, Article 63(1) says: “A person shall be disqualified from being elected or chosen as, and from being, a member of the parliament, if — (a) he is of unsound mind and has been so declared by a competent court; or (b) he is an undischarged insolvent; (c) he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign state; or (d) he holds any office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; (e) he is so disqualified by an act of parliament.”

    However, the martial law regime introduced new qualifications and disqualifications for membership of parliament through the President’s Order No 14 of 1985. After insertion of the new provisions, Article 62 reads as such: “A person shall not be qualified to be elected or chosen as a member of the parliament ………(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 and non-profligate and honest and ameen; (g) he has not been convicted for a crime involving moral turpitude or for giving false evidence; (h) he has not, after the establishment of Pakistan worked against the integrity of the country or opposed the ideology of Pakistan.

    “Provided that the disqualifications specified in paragraphs (d) and (e) shall not apply to a person who is a non-Muslim but such a person shall have good moral reputation.”

    These amendments made by the president’s order were affirmed by the parliament through eighth Amendment in 1985.

    In the judgement, Justice Bandial highlighted that the Islamic provisions introduced in Article 62 of the Constitution in 1985 were retained by the 18th Amendment to the Constitution in 2010, as an overlap in the sub-clauses of (g) and (h) of Article 62(1) and Article 63 was removed by deleting repetitive text in Article 62(1) of the Constitution.

    But the salient Islamic provisions of Article 62 have remained part of Article 62 through clauses (d), (e) and (f) which carry Quranic qualifications under Islamic law for establishing eligibility to hold public office of trust or authority, the verdict explained.

    The judgement also recalled that amendments to the Constitution were made through the Legal Framework Order, 2002 during the martial law regime of retired Gen Pervez Musharraf. The parliament discarded these changes through the Constitution (Eighteenth Amendment) Act, 2010 and substantially reformed the constitutional scheme regarding candidature for election to the parliament.

    However, the clauses of Article 62 (1) following the 18th Amendment remained as such: “A person shall not be qualified to be elected or chosen as a member of the 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.

    Published in Dawn, April 15th, 2018

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