Good Governance & the Rule of Law Implementation of Articles 62 and 63

Electioneering is on with all its fervour and so is the season of debate. Many a matter of fundamental significance, which usually doesn’t get proper heed, is up for threadbare analysis. One such theme is the implementation of Articles 62 and 63.

The propensity to enter into nuanced discourse on a particular legal matter, right at the outset of an occasion, is not peculiar to Pakistan; it is universal to raise fundamental questions at the time of implementation of a piece of legislation.

Articles 62 and 63 of the Constitution of Pakistan articulate, respectively, the qualifications and disqualifications of a candidate for election to the parliament. The law has been on the statute book since 1973, though with somewhat different content. Its implementation, during the filing of nomination papers for 2013 general elections has entailed a heated debate in which, basically, two types of thinkers are upping the ante. First are the liberals who question the modalities and procedures by which these articles are being implemented; and the second group comprises conservatives who insist that the law is perfect in its present form.

Both sides continue sticking uncompromisingly to their stance without appreciating the dictate of the Rule of Law that is part of Pakistan’s constitution by virtue of Article 4. The doctrine is accepted by the UN as a fundamental principle of good governance. In his report on the rule of law and transitional justice, Mr Kofi Annan, the then UN Secretary General, stated:

‘The rule of law is a concept at the very heart of the Organization’s mission. It refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.’

With regard to good governance, the legal position of Articles 62 and 63 needs to be comprehended first. Indubitably, the law is not part of a publicly promulgated legislation. Those who question its legality on the ground that it’s a part of some ‘imaginative figment’ of Zia era seem completely oblivious to the fact that these Articles were rewritten through the Eighteenth Amendment.

Their argument that the moral and religious enforcement model introduced by Zia-ul-Haq has its imprints on the law may be right to some extent, but the fact still remains that the law received its umpteenth validation through the present political dispensation.

Treating its validation as a point of departure, the next issue that begs deep contemplation is the enforcement of the law. Enforcement of any law has the potential to ensue strong reaction, as, by its very nature, it calls for big decisions with a clear-cut stance. In our governance system where electoral hopefuls are subject to public and private enforcement along with adversarial court work, the element of dissent and discord is inevitable. To mitigate the inclemency of the enforcement, the scheme of Constitution spells out two lists: one is the Positives List contained in Article 62 and only applicable to Muslim candidates; the other is the Negatives List contained in Article 63. The system provides that the nomination papers accompany the following declaration:

‘I have consented to the above nomination and that, I fulfil the qualifications specified in Article 62 of the Constitution and I am not subject to any of the disqualifications specified in Article 63 of the Constitution or any other law for the time being in force for being elected as a member of the National Assembly/Provincial Assembly.’

 Those who question its legality on the ground that it’s a part of some ‘imaginative figment’ of Zia era seem completely oblivious to the fact that these Articles were rewritten through the Eighteenth Amendment.
 This declaration is subjected to ‘scrutiny’ or ‘summary enquiry’ by the Returning Officer under Section 14(3) of the Representation of People Act, 1976 which reads:

‘The Returning Officer may, either of his own motion or upon any objection, either by an elector or by any person referred to in sub-section (1), conduct such summary enquiry as he may think fit and may reject nomination paper if he is satisfied.’

In systematic working of the ROs, candidate’s declaration and summary inquiry should have settled the matter. But, some ROs bent on asking questions from the Positive List, and this act of theirs, rightly invoked the reaction from the Lahore High Court in Munir Ahmed v. Election Commission of Pakistan. The Honourable Court took the cognizance of the matter and highlighted that some of the Returning Officers specifically asked self-styled questions about Article 62(1) (e), (f) and (g). The Honourable Court rightfully restrained ROs from asking ‘intrusive’ and ‘inquisitive’ questions regarding the aspects irrelevant to the information provided in the papers.

It also reinforced the declaration mechanism which was to be believed unless credible information to the contrary effect was presented before the RO.
For academic purposes, however, Article 62(1) (e), (f) and (g) may be briefly visited here. The three clauses provide that a Muslim candidate should, in brief, be well-conversant with Islamic knowledge, be ‘sadiq’ and ‘ameen’, and be not opposed to the Ideology of Pakistan. The liberals term these clauses as abstract and with moral and religious model of enforcement at work; while the non-liberals tend to maintain that the concepts are legal and not artificial or abstract. Former Chief Justice of Pakistan Justice (R) Saeeduzzaman Siddiqui, opines that the concept of Ideology of Pakistan is legal as it is anchored in the Objectives Resolution that was not altered by any constitution of Pakistan and was relied upon in Supreme Court in a case of Asma Jilani. No matter what school of thought one subscribes to, the fact of the matter is that besides scrutiny through democratic voting process, the instant scheme of qualifications and disqualifications has its roots in the doctrine of the Rule of Law, which, in effect, is a cardinal principle of good governance. This appears to be healthy for Pakistan as in this case Pakistanis tried to agree to disagree, which makes the system productive.

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