Reviewing Article 62 of Constitution of Pakistan 1973

The Election Commission of Pakistan in the Toshakhana reference disqualified former prime minister Imran Khan for “making false statements and incorrect declaration” about the gifts he had received during his tenure as the premier. The time duration for disqualification is stated simply as ‘for the time being’.

The above decision directly leads to Article 62 (f), that states: “he is sagacious, righteous and non-profligate, honest and ameen, there being no declaration to the contrary by a court of law.” These being among the qualities required for membership of Majlis-e-Shoora (Parliament). A clause in particular, Khan has supported repeatedly.

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The decision of ECP states absence of at least two qualities: honest and ameen. This decision opens doors for a petition that may be filed in higher courts to declare Khan dishonest and not ameen. The clauses do not end at a limited time.  Any such decision is for life.

Nawaz Sharif was disqualified for not declaring income he never received. Yousuf Raaza Gilani was disqualified on contempt of court.

In changing key points in the Constitution of 1973 of Pakistan, General Zia created a legal framework inundated with subjective terms that defy legal definition and has led to many cases in courts. These terms have created confusion and are open to interpretation and to be used against any candidate if so desired.

According to Article 62 (d) (e) (f) (g) of the Constitution, “he is of good character and is not commonly known as one who violates Islamic Injunctions; he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins; he is sagacious, righteous and non-profligate, honest and ameen, there being no declaration to the contrary by a court of law; and that he has not, after the establishment of Pakistan, worked against the integrity of the country or opposed the ideology of Pakistan.” Do not these subjective terms open a Pandora’s Box?

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There is a conflict of opinion among Ulemas as to what is a violation of Islamic Injunctions. Is listening to music or keeping a dog as a pet a violation? It is not clear who makes the determination as to how someone is not commonly known as one to violate Islamic Injunctions. How does one determine a “candidate is of good character” and is not commonly known as one who “violates Islamic injunctions?” Is praying five times a day conforming to the Islamic Injunction or one must wear a beard with it? What proof is required to satisfy the standards set? Will Ulemas belonging to different schools agree on the criteria set?

Should politicians be allowed to hold dual nationality?

The word “allegiance” means that we promise loyalty. It also carries with it the expectation that this loyalty will be exclusive and unrestrained. In the case of a declared war or real threat or conflict, for example, our allegiance to Pakistan should preclude any other interest, be it another country or political ideology. Since citizenship carries with it a responsibility to be exclusively loyal to one country, the whole concept of dual citizenship and nationality raises questions about which of the dual citizenships has priority. This is extremely important when the two countries have opposing interests. ‘It can be a deadly problem when a dual citizen is in a high position within our government. Can one imagine a Japanese citizen serving in the Pentagon during WWII? Alternatively, how about a citizen of the Soviet Union holding a cabinet position in the White House during the Cold War?

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Leaders must own the county they purport to lead. In Pakistan, leaders invest heavily abroad-when in hot waters, they skip the boat to live in ample abundance abroad only to return once some kind of deal is struck to return to be ‘leaders’ again.

What about paying taxes and ensuring that past ten years of taxes filed by an aspirant is attached with papers filed? Also, that the taxes filed and income declared is in line with lifestyle followed.

Any constitution must reflect the spirit of needs of a country. Laws must serve the people of the country. A constitution reflects the most important laws of a country. It lays out provisions for how a country must be governed. Without coherent rules, anarchy can be a predictable outcome.

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The writer is a lawyer, academic and political analyst. She has authored a book titled ‘A Comparative Analysis of Media & Media Laws in Pakistan.’ She can be contacted at: yasmeenali62@gmail.com and tweets at @yasmeen_9

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