The constitutional provisions relating to the qualifications and disqualifications of legislators, especially the Sadiq (truthful) and Ameen (honest) clause, have somehow become a hot topic in political and legal debates in Pakistan since the Supreme Court formally took up the Panamagate case in November last year. In this case, the petitioners sought the disqualification of PM Nawaz Sharif, inter alia, by invoking the so-called Sadiq and Ameen clause contained in Article 62 of the Constitution of Pakistan. Later, the dissenting note written by the two honourable apex court judges in the historic but split Panamagate judgment was also primarily based on this very constitutional clause. They were convinced that PM Nawaz Sharif was no longer Sadiq and Ameen owing to the contradictory and controversial speech made by him on the floor of Parliament regarding the money trail for the acquisition of London assets admittedly owned by his children.
Yet another petition filed by a PML-N member in the SC also seeks the disqualification of PTI Chairman Imran Khan on similar legal grounds. Similarly, in 2014, three identical constitutional petitions were also filed in the apex court to seek the disqualification of PM Nawaz Sharif over an alleged misstatement made by PM Nawaz Sharif on the floor of the National Assembly on August 29. Noticeably, there is a rising tendency of approaching the apex court to get legislators disqualified by invoking Articles 62 and 63 of the Constitution. So, on a lighter note during the Panamagate proceedings, an honourable judge of the bench rightly remarked that no one except JI’s Ameer Siraj ul Haq would survive if Article 62 and 63 were thoroughly implemented in the country.
In fact, Sadiq and Ameen were essentially the key attributes of the Prophet Muhammad (PBUH). Indeed, he was best known for his righteous and trust-worthy character among the Meccans even in the pre-Islamic period. So each Muslim should always actively endeavour to sincerely follow him to the best of his/her individual capacity. However, exploiting the exalted name and character of the Prophet Muhammad (PBUH) for selfish political interests is absolutely deplorable. Regrettably, General Zia-ul-Haq, a despotic usurper tried to incorporate some religious symbols in the national discourse in Pakistan in the name Islam. As part of his so-called process of Islamization, he amended the Article 62 and 63 of the Constitution necessarily requiring a legislator, inter alia, to become a Sadiq and Ameen. Ironically, his own character and conduct were hardly compatible with these constitutional qualifications. He was such a ‘Sadiq and Ameen’ who artfully extended his promised 90-day rule to an autocratic regime spanning over some 11 years.
At present, the requisite qualifications for a legislator in any country are simple and almost uniform all over the world. In this regard, there is a universal rule of general qualifications; for an individual to become a public representative in a country, he must only be an adult and sane citizen of that country, and nothing else. So, only the minors, insane persons, non-residents and aliens are prevented from holding a public office. This general rule is being observed all over the world including the democratic countries like the US, UK, France, Germany, Canada, Australia, Japan and India.
The original 1973 Constitution of Pakistan also prescribed the general qualifications for the parliamentarians in the country. But later, some additional provisions were added to Articles 62 and 63, which gave rise to some exhaustive and extensive pre-conditions for qualifying to be a Member of Parliament. So first of all, a candidate has to confirm to the Islamic and national ideology of the country. Besides being a Sadiq and Ameen, he should practice obligatory duties prescribed by Islam and must abstain from major sins. Likewise, dual nationality, insolvency, previous conviction, loan-default and non-payment of utility bills can also be grounds for disqualification of individuals to contest elections in Pakistan.
Noticeably, there are a number of shortcomings and contradictions in the entire set of qualifications and disqualifications provided under the Constitution of Pakistan. In fact, there is no known procedure or mechanism for the ‘introspection’ of the candidates before labelling them good or bad Pakistanis or Muslims. Performance or non-performance of religious obligations is primarily a personal affair of individuals which hardly involves one’s public life.
The Pakistan Citizenship Act, 1951, recognises the right of dual citizenship as a matter of state policy. Therefore, after recognizing a right, there is no justification for any kind of discrimination against anyone. A person once convicted by a competent court is considered to be innocent having undergone his punishment. So, barring a previous convict from contesting elections is against the principles of Natural Justice. Likewise, loan-defaulters and tax-evaders should be apprehended and dealt with according to the law of the land, instead of raising these objections at the time of the filling of nomination papers.
Besides Pakistan, probably Iran is another country where some extensive ‘Islamic’ qualifications have been prescribed for the public representatives. After the successful 1979 Islamic revolution in Iran, the revolutionary leadership introduced certain constitutional reforms in the country. To keep the Islamic spirit alive, a number of stringent qualifications to become a legislator were enforced in the Islamic republic. The constitutionally-mandated Guardian Council thoroughly scrutinises all individual candidates before allowing them to contest the election to become members of the Majlis (Iranian Parliament). This Guardian Council is composed of twelve learned jurists and Faqihs (expert clerics).
Ironically, in Pakistan, the very duty to scrutinise the credentials of the candidates is done by some naive Returning Officers (RO’s) before the general elections. While replicating the ‘Iran model’ in Pakistan, we must keep in mind that the Iranian society has undergone a significant socio-political metamorphosis after the Islamic revolution. Pakistani society has yet not experienced similar metamorphosis or socio-religious transformation. Public representation is a somewhat mirror of the society which only reflects the prevailing societal norms and public morality in general. Moreover, Pakistan has been politically adhering to the Westminster model of parliamentary democracy, which hardly has any space for such theological ideals.
In addition to a formal constitutional scheme, there must also be a healthy and dynamic political culture to ensure good governance. This sort of political culture plays a pivotal role in the smooth functioning of democracy. The growing relevance of the political parties has significantly minimised the importance of individual candidates in the entire electoral process. Generally, people vote for a particular political party without knowing the personal conduct and character of individual contestants. Therefore, it is the mandatory duty of each political party to thoroughly scrutinize the credentials of candidates before awarding them party tickets to contest elections.
Generally, the people are considered to be the ultimate arbitrators in a democratic political dispensation. Therefore, instead of judging individuals on the touchstone of Article 62 and 63, this matter should be left to electors with whom sovereignty rests. The integrity and honesty of public representatives is no doubt desirable, but the same should be ensured by the promotion of a healthy political culture and the establishment of the rule of law in the polity. Certainly, a lot of countries in the world have succeeded in securing honest and competent legislators even without some extensive pre-conditions.
Articles 62 and 63 of the Constitution have apparently failed to significantly improve our political system. Instead of ensuring the presence of ‘Sadiq and Ameen’ legislators in the parliament, these constitutional provisions have given rise to a number of controversies and confusions. On the eve of every general election in Pakistan, RO’s have been observed ridiculously defining and interpreting the ‘Sadiq’ and ‘Ameen’. Similarly, these provisions are now being relied by the political parties to get undesirable parliamentarians disqualified. Indeed, this vague idealism is doing no good service to the religion. Nor will it help strengthen the evolving democratic institutions in Pakistan. Therefore, superior judiciary should refrain from narrowly interpreting the terms Sadiq and Ameen, and disqualifying legislators while excessively applying this ambitious constitutional clause.
The writer is a lawyer and columnist based in Lahore.
Noticeably, there are a number of shortcomings and contradictions in the entire set of qualifications and disqualifications provided under the Constitution of Pakistan.
