' MUNIB AKHTAR, J.--- The appellant filed his nomination papers to contest the forthcoming general elections to the National. Assembly as a candidate for NA-250 Karachi-South. Certain, objections were taken to the Appellant's candidature, and the Returning Officer, on scrutiny of the nomination papers under the Representation of the People Act, 1976 ("1976 Act"), rejected the same by means of the impugned order. That order, as presently relevant, states as follows:--- "It is a matter or record that Mr. Pervez Musharaf being Chief of Army Staff and President of Islamic Republic of Pakistan held the Constitution of Pakistan 1973 in abeyance/suspended on 30-11-2007, detained/removed a vast majority of Hon'ble Judges of Superior Judiciary of Islamic Republic of Pakistan, insulted to Mr. Justice Choudhry Muhammad Iftikhar, Hon'ble Chief Justice Supreme Court of Pakistan publicly by pulling his hairs and his said act, were declared/held by the Hon'ble Supreme Court of Pakistan, mala fide, ultra vires, to the Constitution of Pakistan, 1973 and without jurisdiction vide the judgment reported in PLD 2009 Supreme Court of Pakistan 879. Hence, he is liable to be punished under Article 6 of Constitution of Pakistan 1973. It is also appeared that his nomination Form is liable to be rejected under Articles 62 and 63 of Pakistan 1973 and the provision of section 14, in this regard of the Representation of People Act 1976 his nomination [for] N.A-139 Qasoor, Punjab has been rejected by Returning Officer."
' The appellant appealed to the Election Tribunal against the impugned order. After having heard learned counsel for the appellant, we were satisfied that no interference with the impugned order was called for, and dismissed the appeal. The following are our reasons for having done so.
2, Learned counsel for the appellant read out the impugned order and submitted that the Supreme Court had not observed in the cited decision that the appellant was punishable under Article 6 of the Constitution. Even otherwise, the observation made by the Returning Officer did not have any jurisdiction to state that the appellant was liable to be so punished. Learned counsel further submitted that the acts considered in the cited decision, and declared to be unconstitutional, had taken place in 2007 and more than five years had passed since that time. Learned counsel submitted on such basis that Articles 62 and 63 could not be made to apply to the appellant's case. This was of course without prejudice to his basic submission that the requirements as to qualification and disqualification set forth in the said Articles were in any case not breached or violated by the appellant in any manner. Learned counsel further submitted that there was no declaration by any court of law that the appellant was not righteous, sadiq or ameen and therefore the bar contained in Article 62(1)(f) could not possibly apply to him. His case was that absent such declaration, the appellant must be deemed compliant with the requirements of the aforesaid provision. Learned counsel submitted further that although criminal cases were pending against the appellant, he had not been convicted in any of them and in accordance with fundamental principles of criminal law jurisprudence had to be presumed innocent till proven guilty. He submitted that the Returning Officer had made serious errors in law in rejecting the appellant's nomination papers. The impugned order was not sustainable and he prayed that the appeal be allowed.
3. We heard learned counsel for the appellant as above and considered the record. It is clear from the impugned order and the reference made and reliance placed therein on Sindh High Court Bar Association and another v. Federation of Pakistan and others PLD 2009 SC 879 that the Returning Officer concluded that the appellant was not qualified to he elected a member of the National Assembly by reason of being non-compliant with paragraph (f) of clause (1) of Article 62 of the Constitution. Articles 62 and 63 were substituted in their entirety by the 18th Amendment to the 'Constitution, which took effect trom 19-4-2010 onwards. The substituted Article 62(1), as presently relevant, provides as follows (emphasis supplied):--- "(1) A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless- (0 he is sagacious, righteous and non-profligate, honest and ameen, there being no declaration to the contrary by a court of law; ..."
' The words emphasized are new, having been added by the 18th Amendment.
4. In our view, there are three aspects of the substituted Article. 62(1)(t) that require consideration for present purposes. First is of course the effect of the newly added words. Now, section 14(3) of the 1976 Act enables the Returning Officer to conduct such summary inquiry of the nomination papers of a candidate as he thinks fit and reject them in case he is satisfied, inter alia, that the candidate is not qualified to be elected as a member. Prior to the change brought about in Article 62(1)(f), the Returning Officer could therefore conclude on the basis of his summary inquiry, or an objection taken in this regard by a person entitled to do so, that the candidate did not meet the requirements of this provision (e.g., was not honest or ameen) and reject his nomination. The newly-added words however, have changed the complexion of Article 62(1)(t). It is now no .Longer open to, the Returning Officer to himself reach the conclusion that the candidate is not sagacious, righteous, etc. He can come to such a conclusion only if there is a declaration to this effect by a court of law. Put differently, the effect of the newly added words necessarily is that unless a court of law makes a declaration to the contrary, the Returning Officer must proceed on the basis that the candidate is sagacious, righteous, etc. To hold otherwise would be to render the newly-added words otiose and a nullity. It would be as though no change at all has been brought about in Article 62(1)(f), which is patently not the case.
5. The second aspect of the provision that requires consideration is the standard that is to be applied in evaluating whether the candidate is sagacious, righteous, etc. This need arises because although the words used in Article 62(1)(f) are well-understood, there is no single or set meaning that each has. Like so many words of the English (or for that matter, the Urdu and Arabic) languages, each of the words used in Article 62(1)(f) carries and can convey different shades of meanings, which can even overlap. For example. The word "righteous" when used in respect of a person can, according to the Shorter Oxford English Dictionary, convey .The meanings of him being "just, upright, virtuous, guiltless, sinless; conforming to the precepts of divine law or accepted standards of morality; acting rightly or justly" (6th ed., 2007, Vol. Pg. 2583). Righteous can thus mean upright, which in fact is one of the meanings that can be conveyed by "honest" (Vol. I, pg.
1271). The words used in Article 62(1)(f) connote standards of conduct, whether by act or omission.
In our view, what is of crucial importance is not the various shades of meanings that these words can have, but rather the measure to be used in determining whether the conduct, act or omission has come up to the required standard. Article 62(1)(f) can be interpreted, and the words used therein applied maximally but, as is. At once obvious, that would have a huge exclusionary effect.
Who is the proper referent for purposes of Article 62(1)(f)? Does the Constitution impose such a high standard in this paragraph that it becomes virtually impossible for any but a very small minority of Pakistanis to even potentially come up to it?, In our view, this cannot be so. To Article 62(1)(f) (or indeed, any of the other similar provisions of Articles 62 and 63) would mean either that elective office would be shut to all but the tiniest sliver of society or that such provisions would have to be ignored altogether for all practical purposes. Neither conclusion is acceptable, not merely on the basis of well-established rules of constitutional interpretation, but also precisely because (to use Marshall, CJ's "mighty phrase") "it is a constitution that we are expounding" (McCulloch v.
Maryland (1819) 17 US 316). A constitution is, and must above all else be, a practical, living document and the standards that it imposes and calls for must likewise be practical and workable.
6. What then is the true standard by which candidates for elective office are to be measured to ensure that they meet the requirements set by Article 62(1)(f)? In our view, the standard can only be: "we the people", who have chosen to "give to ourselves, this Constitution". Thus, for example, Article 62(1)(t) does not require the candidate to display the wisdom of the wisest amongst us, but rather, and simply, to show the sturdy good sense of the ordinary Pakistani, as embodied in the electorate. And it must be remembered that the profile of the ordinary Pakistani voter is not limited to or based only on the city dweller, no matter how much of a well-informed and knowledgeable sophisticate he may believe himself to be, but also includes his rural counterpart. It is, in other words, the sagacity, righteousness, non- profligacy, honesty and trustworthiness of every man that the candidate for election to public office must display and nothing other or greater than that. And why should it be otherwise? Has our faith in the ordinary Pakistani (i,e, in our own selves) sunk so low that we must abandon all hope of him (and of course, her) being the litmus test? Cynics may perhaps think otherwise, but this Tribunal at least, would firmly answer this question in the negative.
The Constitution is meant to be a living document. But for this statement to have real and meaningful content and substantive effect, it must live not in dusty law tomes, but first and foremost in the hearts and minds of all Pakistanis. And it is therefore to Pakistanis themselves that we must turn for providing the true measure whereby the standards mandated in the various paragraphs of Articles 62 and 63 are to be judged and enforced.
7. The third aspect of Article 62(1)(0)that requires consideration is the proper interpretation and application, of the newly-added words, "there being no. Declaration to the contrary by a court of law". Two points require attention. Firstly, it is possible to understand these words to mean that the finding by the court of law must specifically declare the candidate to be other than sagacious, righteous, etc. This interpretation would have too restrictive an effect on the .Application of Article 62(1)(f). In our view, the proper interpretation of the newly added words would be that they include a declaration (i,e,, a finding) by a court of law that necessarily (and we emphasize this word) leads to the conclusion that the person is other than sagacious, righteous, etc. Secondly, the declaration must be made in circumstances that are relevant for purposes of Article 62(1)(f), i,e, can reasonably be regarded as relatable to a person's suitability for public office. In other words, not every declaration by a court of law may, even if formally relatable to any one of the matters therein specified, be of relevance for purposes of Article 62(1)(f). The provisions of Articles 62 and 63 must be given a contextual meaning and effect, and the context is provided by the needs of public office.
8. With the foregoing considerations in mind, we turn to the facts and circumstances of the appellant's case. As noted above, the Returning Officer referred to Sindh High Court Bar Association and another v. Federation of Pakistan and others PLD 2009 SC 879 to conclude that the appellant was not qualified to be elected to the National Assembly. The facts and context of the cited decision are too well-known to require a detailed rehearsal. On 3-11-2007, the appellant, then holding the offices of President and Chief of Army Staff, issued a Proclamation of Emergency and a Provisional Constitutional Order (PCO). The. Constitution itself was put in abeyance. Fundamental rights were suspended and the appellant arrogated to himself the power to amend the Constitution. It was these instruments and other allied and further acts of and by the appellant that were challenged by the Sindh High Court Bar Association in the Supreme Court. The various judgments rendered in the case constitute an important milestone in the constitutional development of this country. The Proclamation of Emergency and the PCO (among other instruments and decisions) were struck down as being unconstitutional and violative of law. Our present purposes are however limited to a consideration of certain findings made by the Supreme Court in respect of appellant. It was observed as follows in the short order (reproduced at pp. 951- 963): "General Pervez Musharraf (Rtd.) in the garb of Emergency Plus and the Provisional Constitution Order made amendments in the Constitution by self-acquired the powers which all are unconstitutional, unauthorized, without any legal basis, hence, without any legal consequences" (pg. 957). In the detailed judgment of the Chief Justice, it was observed as follows after a detailed review and marshaling of the relevant facts (emphasis supplied):--- "80. Seen in the above perspective, the actions of General Pervez Musharraf dated 3rd November, 2007 were the result of his apprehensions regarding the decision of Wajihuddin Ahmed's case and his resultant disqualification to contest the election of President. Therefore, it could not be said that the said actions were taken for the welfare of the people. Clearly, the same were taken by him in his own interest and for illegal and unlawful personal gain of maneouvring another term in office of President, therefore, the same were mala fide as well. The statement made in Proclamation of Emergency that the situation had been reviewed in meetings with the Prime Minster, Governors of all the four Provinces, and with Chairman, Joint Chiefs of Staff Committee, Chiefs of the Armed Forces, Vice Chief of Army Staff and Corps Commanders of the Pakistan Army, and emergency was proclaimed in pursuance of the deliberations and decisions of the said meetings, was incorrect.
The Proclamation of Emergency emanated from his person, which was apparent from the words "I, General Pervez Musharraf..." used in it.
81 There is force in the submission of the learned counsel for the petitioners that the continuation in power of General Pervez Musharraf was all along the result of maneuvering....
82. As to the constitutionality and the legality of the acts/actions of 3rd November, 2007, General Pervez Musharraf himself, in an interview to a foreign TV news channel (BBC) admitted that he had taken unconstitutional steps.... (pp. 1055-6)
100. It may be mentioned that the power to amend the Constitution is an onerous task assigned to the Parliament, which represents the will of the people through their chosen representatives. It is to be carried out in accordance with the procedure prescribed in Articles 238 and 239 of the Constitution, viz. By a two-third majority of the members of both the Houses of Majlis-e-Shoora (Parliament), and by no other means, in no other manner, and by no one else. The holding in abeyance of the Constitution in the first place, and then making amendments in it by one man by the stroke of his pen, that is to say, in a manner not envisaged or permitted by the Constitution, are mutilation and/or subversion of the Constitution simpliciter, and no sanctity is attached to such amendments per se. No sanctity attaches to them if they are made after a declaration to that effect is made by the Court, while adjudging the validity of such assumption of power. Equally bereft of sanctity remain the amendments of any such authority, which are ratified, affirmed or adopted by the Parliament subsequently and deemed to have been made by the. Competent authority..... (pg. 1064)
102. In the light of the above discussion, it is held and declared that the amendments purportedly made by General Pervez Musharraf from 3rd November, 2007 up till 15th December, 2007 (both days inclusive) were neither made by an authority mentioned in the Constitution nor the same were made following the procedure prescribed in the Constitution and were, therefore, unconstitutional, illegal and void ab initio" (pg. 1070)
' These are clear and specific findings recorded personally against the Appellant. It is the import and significance of these findings in the context of Article 62(1)(f) that must now be considered.
9. In order, to do so, we must turn first to the Objectives Resolution, which was adopted in 1949 and has served as the Preamble to all the constitutions enacted in the country. (It is of course now also an Annex to the Constitution and has substantive effect accordingly.) The Objectives Resolution embodies (indeed, begins with) one of the founding principles of our State: "Whereas sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust". In this, our constitutional concept of sovereignty differs markedly from secular polities. There, sovereignty, in its entirety, vests ultimately in the people and though they may have chosen to place limitations on themselves in the exercise of it (e.g., in the shape of fundamental rights) in the end it is they alone who are the sovereign. Not- so with us. Here, the people of Pakistan act as delegates of Allah, Who alone is the Sovereign, and act as trustees of what has been delegated to them. Thus, the very enactment of the Constitution and the exercise of the delegated sovereign power through or under it (by means of the people's chosen representatives) are in the nature of a sacred trust. This is the choice of the people of Pakistan, freely made and adopted, in absolute and humble submission to the Will of Allah Almighty.
10. It follows from the foregoing that any exercise of the delegated sovereign power for any personal gain, or arising from a desire for some personal benefit or advantage, or to escape or prevent any perceived personal threat or danger, is a breach and violation of the sacred trust. It is, in other words, a betrayal of the trusteeship that lies at the very core and heart of the delegated sovereign power. Now, the word "ameen" that is used in Article 62(1)(f) also has the core meaning of trustworthiness. An ameen is above all else, someone who is trustworthy and in the context presently under consideration; can and must mean someone who can be trusted with (and therefore entrusted) the delegated sovereign power, and the exercise of it within the bounds and limitations as set by the Constitution. There can be no doubt that what the appellant purported to do on 3-11-2007 was an attempt to exercise the delegated sovereign power at the most fundamental level: he claimed to have put the Constitution in abeyance and arrogated to himself the right and power to amend it. In other words, he sought to appropriate to himself the delegated sovereign power in its entirety and use the sacred trust for his own purposes. As the Supreme Court has made absolutely clear, this was a gross misappropriation, and hence it was an abuse of the sacred trust. The context of what the appellant attempted to do was clearly relatable to (indeed, was in the claimed exercise of) public office. The findings recorded by the Supreme Court in the cited decision therefore necessarily amount to a clear declaration that the appellant has not acted as or been ameen within the meaning and for the purposes of Article 62(1)(f). And there can be no conceivable doubt that in so grossly abusing public office and the sacred trust, 'the appellant acted in a manner that would not come up to the standard of the ordinary. Pakistani voter.
11. It is our view therefore that: (i) the appellant cannot be regarded as ameen within the meaning of Article 62(1)(f); (ii) this is so up to the requisite standard of the ordinary Pakistani voter; and (iii) there are findings in a. Decision of a court of law, i,e, in Sindh High Court Bar Association and another v. Federation of Pakistan and others PLD 2009 SC 879 that necessarily lead to the conclusion as at (i), and hence the requisite declaration has been made. Thus, the appellant breached and is in violation of Article 62(1)(f). It therefore follows the Returning Officer was entitled to come to the conclusion that the appellant is not a person qualified to be elected a member of the National Assembly and to reject his nomination papers.
12. Before concluding, we may note that whatever has been said herein above is, in the context of the appellant as a holder of public office and for purposes of considering whether or not he qualifies in terms of Article 62(1)(f). Nothing herein is intended to reflect, or should be construed as reflecting, on the appellant when acting in his private capacity.
13. For the foregoing reasons, we dismissed the appeal by means of the short order noted above.