A Discussion about Article 62 & 63

[HRK]

Its Election time in Pakistan and as expected we are facing the same haphazard situation at governance level; a debate about the constitutional articles 62 & 63 is going on in Political and at Media circles.

Liberal or pro-west groups are raising question about some Islamic clauses of the constitution of Pakistan, particularly related to article 62 & 63 and claiming that these are un-necessary clauses and only serving the purpose of establishment. Their main concerns are

1- It is a political Witch hunting.
2- Religion is Private matter it should not be the base for acceptance or rejection of Nomination Papers. In Asma Jhangir view “its an attempt to bring Parliament of Saints”
3- These are undemocratic articles as included in constitution by Gen. Zia-ul-Haq and there is no mechanism to ensure the rightful scrutiny of candidates.

On the other hand, right wing Journalist and social activist are propagating their views in favour of both theses articles they have their arguments, before to discuss the point of view of both side I think it logical to state articles 62 & 63 of constitution so that readers could make their mind.

Article: 62 Qualifications for membership of Majlis-e-Shoora (Parliament)
62. Qualifications for membership of Majlis-e-Shoora (Parliament). ---(l) A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless¬—
(a) he is a citizen of Pakistan;
(b) he is, in the case of the National Assembly, not less than twenty- five years of age and is enrolled as a voter in any -electoral roll in¬---
(i) any part of Pakistan, for election to a general seat or a seat reserved for a non-Muslims; and
(ii) any area in a Province from which she seeks membership for election to a seat reserved for women.
(c) he is, in the case of the Senate, not less than thirty 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;
(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 well 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:

(2) 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.]

In above stated article 62 which deals with the qualification of a candidate, only clause (1) sub clauses (d, e, & f) could be termed as Islamic clauses that too on the basis of word “ Islam” which is used in theses clauses

Some social and constitutional scholars are debating about characteristics of the “Good Character” required in sub clause (d) in their circles, as constitution does not guide about the same

Clause (e) is also under discussion and objected by particular circles, demands from a candidate to have adequate knowledge of Islamic teachings, as it is the fundamental duty of all Muslims to have at least that much religious knowledge upon the basis of which they can take decision about the permissibility or non-permissibility if required.

According to some social and political activist Clause (f) is the most biased and ambiguous clause of article 62, as there is no definition available for “HONEST & AMEEN”, they further claim this clause is used by establishment in favour of pro-establishment candidates.

Article: 63 Disqualifications for membership of Majlis-e-Shoora (Parliament)
Section 21 of the Constitution (Eighteenth Amendment) Act, 2010 (10 of 2010), substituted Art. 63, in its present form, (w.e.f April 19, 2010), in place of the said Art., as substituted by item 16 of the RCO (P.O. 14 of 1985) in 1985 and amended by item 7 of the C.E.O. No. 24 of 2002 and Legal Framework (Amendment) Order, 2002, C.E.O. No. 29 of 2002, that read :
63. Disqualifications for membership of Majlis-e-Shoora (Parliament). — (1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament) if—
(a) he is of unsound mind and has been so declared by a competent court; or
(b) he is an un-discharged insolvent; or
(c) he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State; or
(d) he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or
(e) he is in the service of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest; or
(f) being a citizen of Pakistan by virtue of section 14B of the Pakistan Citizenship Act, 1951 (II of 1951), he is for the time being disqualified under any law in force in Azad Jammu and Kashmir from being elected as a member of the Legislative Assembly of Azad Jammu and Kashmir; or
(g) he is propagating any opinion, or acting in any manner, prejudicial to the Ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order, or the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan; or
(h) he has been convicted by a court of competent jurisdiction on a charge of corrupt practice, moral turpitude or misuse of power or authority under any law for the time being in force; or

(i) he has been dismissed from the service of Pakistan or service of a corporation or office set up or, controlled by the Federal Government, Provincial Government or a Local Government on the grounds of misconduct or moral turpitude; or
(j) he has been removed or compulsorily retired from the service of Pakistan or service of a corporation or office set up or controlled by the Federal Government, Provincial Government or a Local Government on the grounds of misconduct or moral turpitude; or]
(k) he has been in the service of Pakistan or of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service; or
(l) he is found guilty of a corrupt or illegal practice under any law for the time being in force, unless a period of five years has elapsed from the date on which that order takes effect; or
(m) he has been convicted under section 7 of the Political Parties Act, 1962 (III of 1962), unless a period of five years has elapsed from the date of such conviction; or
(n) he, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account or as a member of a Hindu undivided family, has any share or interest in a contract, not being a contract between a co-operative society and Government, for the supply of goods to, or for the execution of any contract or for the performance of any service undertaken by, Government
Provided that the disqualification under this paragraph shall not apply to a person—
(i) where the share or interest in the contract devolves on him by inheritance or succession or as a legatee, executor or administrator, until the expiration of six months after it has so devolved on him;
(ii) where the contract has been entered into by or on behalf of a public company as defined in the Companies Ordinance, 1984 (XLVII of 1984), of which he is a share-holder but is not a director holding an office of profit under the company; or
(iii) where he is a member of a Hindu undivided family and the contract has been entered into by any other member of that family in the course of carrying on a separate business in which he has no share or interest; or
Explanation.– In this Article “goods” does not include agricultural produce or commodity grown or produced by him or such goods as he is, under any directive of Government or any law for the time being in force, under a duty or obligation to supply.
(o) he holds any office of profit in the service of Pakistan other than the following offices, namely:-
(i) an office which is not whole time office remunerated either by salary or by fee;
(ii) the office of Lumbardar, whether called by this or any other title;
(iii) the Qaumi Razakars;
(iv) any office the holder whereof, by virtue of such office, is liable to be called up for military training or military service under any law providing for the constitution or raising of a Force; or
(p) he has been convicted and sentenced to imprisonment for having absconded by a competent court under any law for the time being in force; or
(q) he has obtained a loan for an amount of two million rupees or more, from any bank, financial institution, cooperative society or cooperative body in his own name or in the name of his spouse or any of his dependents, which remains unpaid for more than one year from the due date, or has got such loan written off; or
(r) he or his spouse or any of his dependents has defaulted in payment of government dues and utility expenses, including telephone, electricity, gas and water charges in excess of ten thousand rupees, for over six months, at the time of filing his nomination papers] D[; or]
(s) he is for the time being disqualified from being elected or chosen as a member of the Majlis-e-Shoora (Parliament) or of a Provincial Assembly under any law for the time being in force.
(2) If any question arises whether a member of Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall, within thirty days from raising of such question refer the question to the Chief Election Commissioner.
(3) Where a question is referred to the Chief Election Commissioner under clause (2), he shall lay such question before the Election Commission which shall give its decision thereon not later than three months from its receipt by the Chief Election Commissioner.

Article 63 generally deals with the disqualification of corrupt, tax evaders, wilful loan defaulters, and criminal politician. A group leading by prominent journalists and others insists for the meticulous implementation of Article 63.

In whole article 63 no clause is included which could be termed as Islamic and those who are following this debate knows it very well that our pro-west circles are only arguing about the Islamic part and ignoring the article 63 in their arguments, there attitude is more like “DEGREE TU DEGREE HOTI HAI”.

Now the arguments of against clauses d, e & f of article 62 as stated earlier

- It is a political Witch hunting.

Some people believe that ECP is not an investigation agency, nor it is in its jurisdiction according to prevailing laws, the role of Election Commission is limited to the preparation of Electoral roll, appointing Election Tribunal and holding of General Election, all this hype is being created to serve the purpose of Army and Judiciary, as tweeted by Ms. Asma Jhangir “Please read Article 62 and 63 of the Constitution before closing your minds. Witch-hunting will start selectively.”

Personally I don’t find these are genuine arguments or hold some grounds as Witch Hunting is not serving the purpose if there is any purpose at the part of Judiciary or army, one can simply check the candidates list contesting in this General Election almost all ex-parliamentarians are through from the initial scrutiny process of Election Commission of Pakistan.

- Religion is Private matter it should not be the base for acceptance or rejection of Nomination Papers. "It’s an attempt to bring Parliament of Saints”

One can agree or disagree with these arguments depending upon his/ her approach towards religion but the attitude of ROs is pointing out a flaw in the system which should be address. Mr. Shahazad Chaudhry has rightly discussed about this issue in his article.

The hoopla on 62 and 63 (The News Shahzad Chaudhry Tuesday, April 09, 2013
From Print Edition)

“The problem is more with the returning officers who haven’t been sufficiently coached or briefed by the Election Commission. There were only three tangible criteria that should have been resorted to in the hunt for the right quality of aspirants to public office: one, if they had a criminal record; two, if they defaulted on loans or have evaded taxes given their assets and declared properties; and three, if they have been charged for forgery or cheating on account of possessing counterfeit educational degrees that they may have submitted to qualify for a member of the legislature."

- These are undemocratic articles as included in constitution by Gen. Zia-ul-Haq and there is no mechanism to ensure the rightful scrutiny of candidates

As these articles were included in constitution by Gen. Zia ul Haq, therefore a fraction of society termed these articles as un-democratic or autocratic articles of constitution, moreover according to them there is no clear mechanism is available to implement these articles

Prof. Khurshid counter this argument in one of his recent articles

Some basic facts about articles 62, 63 (Prof Khurshid Ahmad, The News Tuesday, April 09, 2013 From Print Edition)

“The most important part of the Eighteenth Amendment is the way it handled Articles 62, 63, and 63-A. All the three, as they existed before the 18th Amendment, were TOTALLY SUBSTITUTED BY NEW Articles 62, 63 and 63-A. This means that these Articles as they are in the Constitution today have nothing to do with their predecessors, whatever be their merits or demerits. They are fresh additions in their own right, added through the 18th Amendments and approved by the Parliament unanimously. Mr. Ayaz Amir, a respected journalist and an ex-MNA, who voted for this amendment is as much responsible for these articles as anyone else.”

Personally even going through all detail arguments and counter argument s I am still like

What’s wrong with article 62 & 63.......?