Democracy vs Articles 62 and 63 of Pakistan’s constitution

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On Monday, the Islamic Republic of Pakistan celebrated its 70th Independence Day. But even in its 71st year, Pakistan remains a country where civilian governments are often toppled by its powerful military, which has governed for around half of its seven-decades history.

And to this day, never has a democratically elected prime minister completed his five-year term in office. The latest to be ousted is Nawaz Sharif.

While it is true that Sharif is no saint, the grounds for his disqualification by the Supreme Court were not that simple. At the center of the controversy are two much-discussed articles of the constitution of Pakistan, Articles 62 and 63.

The present constitution was drafted in 1973 by the then-leader of the Pakistan Peoples Party (PPP), Zulfiqar Ali Bhutto, with input from the opposition parties. The major fundamental principles included in the 1973 constitution were a federal parliamentary system, democratic freedom for all citizens, an independent judiciary, and the granting of rights to minorities. Whether these principles are practiced or not remains a question.

Articles 62 and 63

Article 62 of the constitution defines the eligibility of candidates to be elected representatives of the people. It states that the candidate must be of good character – that is, not known publicly as one who violates Islamic rulings – that he or she has adequate knowledge of the teachings of Islam, that he or she practices obligatory duties per the Islamic norms as well as abstaining from major sins, and that he or she has not worked against the integrity of the country or opposed the ideology of Pakistan.

The much-criticized clause of this article is one that states that the candidate should be sadiq and ameen (truthful and trustworthy). Critics argue that this clause gives too much power to the courts to expel a democratically elected government and individual politicians.

For its part, Article 63 outlines the conditions on which a member of Parliament ceases to remain one. It says a person shall be disqualified as an elected representative of people if he or she has been convicted by a court of “contempt of jurisdiction”. This includes ridiculing the integrity or independence of the judiciary, or of the Armed Forces of Pakistan.

The Islamic “sadiq and ameen” clause was added to Article 62 under the military dictator Muhammad Zia-ul-Haq as part of his policy of turning the legal system of Pakistan toward Islamization. Critics of this clause, including some internationally known Pakistani lawyers, argue that it was deliberately added to overthrow elected officials – that is, those who had lost their positions in the good books of the military.

Indeed, at the end of the day, who has the authority to decide about the honesty and truthfulness of another?

The last PPP government, which remains the only democratically elected government of Pakistan to complete its term and hand it over to another elected government, had to face the same fate that the Pakistan Muslim League-Nawaz (PML-N) party is facing today.

The country’s prime minister at the time, Syed Yousuf Raza Gillani, was overthrown in 2012 by the top court for contempt of court under Article 63 of the constitution. He was ousted for refusing to ask the Swiss authorities to open corruption cases against then-president and PPP leader Asif Ali Zardari.

Was there no escape from these clauses? Yes. But even this could not unite the Pakistani lawmakers.

After the PPP had tasted the bitterness of such clauses, during a constitutional-amendment session, many politicians proposed the removal of or at least amendments to Articles 62 and 63. Interestingly, the amendment was opposed by the PML-N, arguing that an Islamic ruler must be truthful and trustworthy in order to lead the nation.

But then, after the PML-N had itself been bitten, Nawaz led a caravan to his home city of Lahore, calling for constitutional revolutions in the name of civilian supremacy. Decrying the decision of the court, he said it was not he who had been disqualified, but Pakistani citizens who had voted for the PML-N, and that he would fight for the cause because a small number of judges should not have the power to overthrow a leader elected by millions.

He and his party have now finally called for amendments to these articles, and this time, all of the other major political parties have refused.

Pakistan’s top judges have not yet reacted to Nawaz’ outburst, but two years before, a sitting judge in the Supreme Court of Pakistan argued that even if the nature of some constitutional clauses were difficult to address and implement, the judiciary had to use them as long as they were there, pointing out that parliamentarians had the right to amend the charter but were not ready to do so.

Instead of playing the name-and-shame game, it is high time to look at what more Zia’s legacy has to offer to democracy in Pakistan. With just the removal of an individual, democracy is not in danger. But continuity of the same mistakes by civilian lawmakers is swiftly giving a chance to the third force. Soon the military will no longer need martial law to control the nation: It already has Articles 62 and 63 in its arsenal.

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