' NASIR-UL-MULK, C.J. -- The four matters filed respectively by Ishaq Khan Khakwani, Senator Chaudhary Shaujaat Hussain, Muhammad Azhar Siddique, Advocate and Gohar Nawaz Sindhu, Advocate, were heard and are disposed of together since they involved similar questions of facts and the law.
2. Constitution Petitions Nos. 78, 79 and 85 of 2014 have been filed under Article 184(3) of the Constitution whereas Civil Petition No. 1646-L of 2014 by Gohar Nawaz Sindhu arises from judgment of a Division Bench of the Lahore High Court in Intra Court Appeal No. 865 of 2014, Jated 8.9.2014, upholding the judgment of the Judge-inChambers of 2.9.2014 whereby the petitioner's Constitution petition was dismissed as not maintainable.
3. Mr. Gohar Nawaz Sindhu in his Constitution petition had impleaded Mian Nawaz Sharif, Prime Minister of Pakistan and Ch. Nisar Ahmad, Interior Minister, Government of Pakistan averring that during the period when two political parties, Pakistan Tehreek-e-lnsaf and Pakistan Awami Tehreek, were staging protests in Islamabad, their leaders met with the Chief of Army Staff in the early hours of 29.8.2014; that the electronic media released the news that the meeting was arranged upon request of the Federal Government; that on the same day the Prime Minister on the floor of the House in the National Assembly denied that the Government had requested the Pakistan Army to play the role of a mediator. The petitioner further averred that the denial statement of the Prime Minister was refuted by the Inter Services Public Relations (ISPR) through a message on a social networking site (Twitter)., it was therefore, alleged that the Prime Minister had made a false statement on the floor of the House and thus stood disqualified under Article 62(f) of the Constitution as he was not "sagacious, righteous and non-profligate and honest and ameen" as well as under Article 63(g) for defaming or bringing into ridicule the Armed Forces of Pakistan, The petitioner prayed that both the respondents be disqualified from the membership of the Parliament. The same averments and similar prayers were made in the three other petitions. The writ petition was dismissed by a brief judgment by the Judge-in-Chambers on the ground that it raised a "political question" which was not justifiable. Reference was made to Messrs Hudabiya Paper Mills Ltd. and others v. National Accountability Bureau (PLD 2012 Lahore 515). Gohar Nawaz Sindhu filed Infra Court Appeal. The Division Bench of the Lahore High Court handed down a more elaborate judgment and dismissed the appeal holding that the petition was not backed by any evidence other than newspaper cuttings and consequently the accusations were not established; that there was no prior conviction of the Prime Minister by a Court of competent jurisdiction, condition precedent for disqualification under Article 63(g); that the petitioner was unable to place his case within any of the exceptions to Parliamentary privilege provided in Article 66 of the Constitution; that proceedings in Parliament could not be inquired into by the Courts under Article 69.
4. All the four matters were initially heard by a Bench of three Hon'ble Members, which after a number of hearings proposed the determination of the following Constitutional questions by a Larger Bench:-- "(i) Whether in view of the express stipulations in Articles 62(1)(f) and 63(1)(g) of the Constitution requiring declaration/conviction by a Court, the High Court could have dismissed the writ petition on the ground that it raised a "political question" and was, therefore, not justifiable;
(ii) If it is held that the High Court fell in error and that the writ petition was maintainable, what would be the effect of the Constitutional requirement that declaration/conviction as aforesaid has to be by a Court and for the purpose of such declaration/conviction whether the provisions of Article 10-A of the Constitution requiring "fair trial" and "due process" are attracted; and if so, what do these terms entail; (iii)It may well be that the facts and circumstances emerging on record may prima facie, not justify the acceptance of the writ petition, but it is in our view still essential of the Constitutional provisions and to outline on principle, what would be the:
(a) as to which Court will be competent to make such declaration or to pass an order convicting a member of Parliament;
(b) What will be the procedure adopted by such Court for rendering such declaration/conviction;
(c) What will be the standard of proof required for making such declaration or order of conviction; (d) As to who will have locus standi to seek such declaration/conviction; (iv)The Constitutional provisions of eligibility for elected office requiring an elected persons to be "honest" and "amen" have to be given meaning because these terms have to be interpreted as they constitute a substantive part of the Constitution; and it is the people of Pakistan who have (through the Constitution) mandated and are entitled to ensure that members of Parliament elected by them are inter alia, "honest" and "amen" and thus fulfill the eligibility criteria and qualifications given in Articles 62 and 63 of the Constitution.
(v) Whether Article 66 (privileges of members, etc.) of the Constitution provides an absolute or a qualified privilege to members of Parliament for statements made on the floor of the two houses of Parliament and Provincial Assemblies and also whether the provisions of Articles 62 and 63 of the Constitution override the provisions of Article 66 ibid. (vi)What is the effect of the material changes which have been made in Articles 62 and 63 of the Constitution by virtue of the 18th Amendment passed in April, 2010."
5. In order to establish the allegations, the petitioners had appended press clippings with their petitions reporting the statements of the Prime Minister and the Interior Minister made in Parliament and the message of ISPR released on Twitter. The authentic copies of the statements were not placed on record. During hearing of a cases upon qury from the Bench Mr. Gohar Nawaz Sindhu produced the statements downloaded from the website of the National Assembly. The same were read out and their contents were thoroughly discussed. The relevant portions of the statements made by the Prime Minister and the Interior Minister are reproduced below:-- ' The Prime Minister had stated that:-- "And everything has been explained in profuse detail by Mr. Chaudhary Nisar Ali Khan. He has said that no arbitrative role was either sought by the military nor was such a request made by us." (our own transaction)
' Further, another extract of the speech by the Prime Minister were referred to by the appellant and the petitioners, in which he had stated that:-- {{URDU TEXT}} "It is quite true as Mr. Chaudhary Nisar Ali Khan has said and I was present there, when a telephone call was received informing that Mr. Qadir and Mr. lmran Khan wanted to meet the Chief of Army Staff." (our own transaction)
6. From cursory reading of the above reproduced extracts it becomes quite clear that the Prime Minister was referring to the information divulged by Ch. Nisar Ali Khan in his statement made on the floor of the House.
' Chaudhary Nisar in his speech had stated that:-- {{URDU TEXT}} "Let me clarify about yesterday's meeting that neither any desire nor offer for arbitration came from the military. Let me also clarify about yesterday's meeting and the decision taken regarding to it. It was the one point desire of the other two groups that they would only talk through the military or under its shadow." (our own translation)
He went on to say:-- "The grant of role to the military as a facilitator was their demand." (our own translation)
' Slightly later in his speech, he narrated how such request of the two parties was passed to him through an anonymous "senior officer":-- {{URDU TEXT}} "The meeting with the Chief of Army Staff was conducted on their request and let me also make it clear that we were in Lahore at a funeral (fatehakhawani) that a very senior officer called me and stated that such a request has been received, for which Prime Minister's sanction is required. Prime Minister said that you can meet them." (our own translation)
' The brief twitter message by the ISPR stated:-- "ISPR Release: COAS was asked by the Govt. to play facilitative role for resolution of current impasse, in yesterday's meeting, at #PM House."
7. The ISPR release did not specifically mention the Prime Minister but referred to the request by the Government to play a facilitative role. The Government (Federal Government) under Article 90 of the Constitution consists of the Prime Minister and the Federal Ministers and there was no specific mention of either the Prime Minister or the Interior Minister in the Release. The combined reading of the speeches of the Prime Minister in his statement had referred to the speech earlier made on the same day by the Interior Minister to clarify that the Army was not assigned the role of an arbitrator.
The Interior Minister had in his speech mentioned that the Army was playing the role of a facilitator and that it had never desired to become an arbitrator in the dispute. This statement in the line with the ISPR Release that the Chief of Army Staff was asked to play a 'facilitative' role. Thus, we found no material inconsistency in the three statements so as to attribute falsity to the statement of either the Prime Minister or the Interior Minister.
8. The case had proceeded before the Judge-in- Chambers, the Division Bench of the High Court in appeal and even before this Court on the basis of the press clippings from the print media. For the first time the original statements were brought or our notice during hearing of these matters and it was found that all the cases had no factual foundation on which to proceed further. Though the questions formulated for determination by the larger Bench referred to above are undoubtedly substantial but may be addressed in some other appropriate case. Having said that some clarification is required of the ground on which the Judge-in-Chambers as well as the Appellate Bench held the Constitution petition to be not maintainable as it raised a 'political question'.
9. The Judge-in-Chambers had dismissed the Constitution petition briefly by holding:- "2. I have heard the learned counsel for the petitioner. The question in hand regarding the statement made by the Prime Minister on the floor of the National Assembly, as well as, press release issued by the ISPR falls within the domain of "political question" and is not justiciable.
Petitioner can agitate this matter before an appropriate political forum, if so advised. Reliance is placed on Messrs Hudabiya Paper Mills Ltd. and others v. National Accountability Bureau (PLD 2012 Lahore 515). Hence, instant petition is dismissed as being not maintainable."
' The Appellate Bench after discussing other legal points in paragraph 7(g) of the judgment held:-- "g. Notwithstanding and in addition to what has been stated above, considering the facts and circumstances of the present case, we find that the question raised through this appeal clearly falls within the definition of 'political question' for which adequate and sufficient mechanisms are available in the Constitution as well as in the Rules of Procedure and Conduct of Business in the National Assembly."
10. The Judge-in-Chambers had relied upon the case of Messrs Hudabiya Paper Mills Limited (ibid) to hold the Constitution petition non-maintainable as it raised a `political question'. The said judgment was also authored by the same Judge-in-Chambers, who after taking up the preliminary objection against the Constitution petition filed by Messers Hudaibiya Paper Mills Limited that it was not maintainable being hit by the 'political question' doctrine, found that as a matter of fact the questions raised in it were not political and thus rejected the objection. The learned Judge has in his discussion apart from the foreign sources cited the following passage from the case of Mehmood Khan Achakzai v. Federation of Pakistan (PLD 1997 SC 426):-- "...The fact that any question is a political question will not deter the Court from determining it provided it involves the interpretation of the Constitution or the validity of such question is to be determined on the touchstone of the Constitution. The Court would not adopt political question doctrine for refusing to determine difficult and knotty questions having political overtones. This would amount to abdication of judicial power. Therefore, the circumstance that the impugned action has political overtones cannot prevent the Court from interfering therewith, if it is shown that the action taken is in violative of the Constitution. The superior Courts have aninherent duty, together with the appurtenant power in any case coming up before them to ascertain and enforce the provisions of the Constitution and as this duty is derivable from the express provisions of the Constitution itself the Court will not be deterred from performing its Constitutional duty, merely because the action impugned has political implications."
' In paragraph 16 the learned Judge in Messers Hudabiya Paper Mill's case added:-- "As far as institutional non-justiciability is concerned, the question of desirability of taking up the matter might arise, not because the Court cannot adjudicate the matter but because it might be suitable that the matter is first reviewed and resolved by another branch of the Government.
Courts have the power to look into any matter without prejudice to its political content, especially if there is violation of law and fundamental rights of the citizen are under threat. Therefore, except a few matters like foreign policy, declaration of war or signing a peace pact, etc. which have been traditionally left to the Government purely because it is that these matters be handled and resolved outside Court. We, however, hurriedly that this is not an absolute ouster by any count."
11. In the present case after referring to the Wssers Hudaibiya Paper Mill's case the Judge- inChambers did not proceed to examine whether the questions raised also involved interpretation of the Constitution or that the action of the respondents violated any provision of the Constitution, and if so, its consequential effects upon the respondents. The Division Bench hearing the is evident from the passage quoted above not go into details and while on the hand added that the appeal raised a 'political question', on the other discussed and dilated upon the allegations raised in the appeal on the touchstone of Articles 63, 66 and 69 of the Constitution.
Thus by Court's own showing the questions raised required interpretation and application of certain Constitutional provisions' notwithstanding that they might had political overtones.
12. This issue of whether the Court dismiss a petition because it raises a political! question had come up before this Court many a times before and after Mehmood Khan Achakzai's case (supra)
Federation of Pakistan v. Muhammad Saifullah Khan (PLD 1989 SC 166) concerned the dissolution of the National Assembly by the President wherein it was argued by the Attorney General that the exercise of powers by the President under Articl3 58(2)(b) was a 'political question' which could not be interfered with by the Court. Justice Nasim Hassan Shah, 'writing for the Court, held otherwise and stated that:-- "The circumstances that the impugned action has political overtones cannot prevent the Court from interfering therewith, if it is shown that the action taken is violative of the Constitution. The superior Courts have an inherent duty, together with the appurtenant power in any case coming before them, to ascertain and enforce the provisions of the Constitution and as this duty is derivable from the express provisions of the Constitution itself the Court will not be deterred from performing its Constitutional duty, merely because the action impugned has political implications."
' Recently, the question again came under discussion in 'the case of Watan Party and others v.
Federation of Pakistan and others (PLD 2012 SC 292). While hearing Constitution petitions filed regarding a memorandum written by the of Pakistan in the United States to American and military High Command seeking their interference in the domestic politics of Pakistan it was by the counsel of the said Ambassador that since the concerned a 'political question', Court could not take cognizance of it. Referring to the 'political question' doctrine as developed in the U.S. case of Baker v. Carr [369 U.S. 186 (1962)] it was held:-- "This 'political question doctrine' is based on the respect for the Constitutional provisions relating to separation of powers among the organs of the State. But where in a case the Court has jurisdiction to exercise powers of judicial review, the fact that it involves political question, cannot compel the Court to refuse its determination.
59.in view of the above discussion it is held that this Court enjoys jurisdiction to proceed in all those matters which are justiciable. However, if there is an issue, which alleged to be non- justiciable it would be the duty of the Court to examine each case in view of its facts and circumstances, and then to come to the conclusion whether it is non-justiciable or otherwise." Similar view has been expressed by the Courts in in State of Rajasthan v. Union of india (AIR 1977 1681) where reference was also made to the U.S. case of Baker v. Carr (supra) by Justice P.N. Bhagwati, who writing for the Court held:--c "Of course, it is true that if a question brought before the Court is purely a political question not involving determination of any legal or Constitutional right or obligation, the Court would not entertain it, since the Court is concerned only with adjudication of legal rights and liabilities. But merely because a question has a political complexion, that by itself is no ground why the Court should shrink from performing its duty under the Constitution if it raises an issue of Constitutional determination. Every Constitutional question concerns the allocation and exercise of Governmental powers and no Constitutional question can, therefore, fail to be political."
' Thus the consistent view of the Courts has been that if the determination of any question raised before the Court requires interpretation or application provision of the Constitution the Court is obliged to a upon the same notwithstanding that the action impugned or the questions raised has political over ores. The judgment in Messrs Hudabiya Paper Mills item's case cannot be considered to have laid down that a Constitution petition can be thrown out or. the ground of non- maintainability because it raises a 'political question'.
13. With the above observations Constitution Petitions Nos. 78, 79 and 85 of 2014 are dismissed and have to appeal is refused in Civil Petition No. 1646-L of 2014.
' Petition dismissed. ' JAWWAD S. KHAWAJA, J. -- I have had the opportunity of going through the judgment authored by Hon'ble the Chief Justice. I am in agreement with the conclusion arrived at therein. It may be added that even of the factual averments made in these petitions as to words and expressions used by the respondents are taken as stated, these will not constitute admissible and actionable evidence before a Court so as to justify a declaration in terms of Article 62(1)(f) and/or a conviction in terms of Article 63(1)(g), by a Court of competent jurisdiction. It is clear from these two Constitutional provisions that it is the Court alone which must first make a declaration or pronounce a conviction before the Speaker of the National Assembly can initiate the process for unseating a Member of Parliament. The petitioner in C.P. No. 1646-L/2014 himself stressed this and was right in contending that the Speaker was justified, when approached by certain individuals, in holding that he could only act in the matter if there was a prior declaration or conviction made by a Court.
2. At this point it is of relevance to note that significant changes were brought about in the Constitution through the 18th Amendment passed in April, 2010. Prior to these amendments, there was no requirement of a prior declaration or conviction by a Court. Thus before the passing of the 18th Amendment, the argument that disqualification was a purely political question may have carried some weight since there was no mention of a "declaration" by a "Court of Law" in Article 62(1)(f) nor was there any requirement that a person should have "been convicted by a Court of competent jurisdiction ...." For attracting the disqualification under Article 63(1)(g). but now that references to judicial determination have been introduced in the provisions of the Constitution dealing with electoral disqualification, the Courts cannot step away from their duty to decided such cases in accordance with the law.
3. The questions, therefore, which were framed by a three-Member Bench of this Court and which have been reproduced in para 4 of the main judgment, retain relevance and will, as noted in the judgment, need to be adjudicated by a Court. We can take judicial notice of the fact that the General Elections held in May, 2013 are for various reasons, subject of public debate and controversy. It is with this in view and in order to avoid controversy as to the meaning of Articles 62(1)(f) and 63(1)(g) Of the Constitution and the terms 'honest' and 'ameen' used therein, that the foregoing questions must be adjudicated to provide guidance through precedent. Such precedent can ensue that Constitutional questions and challenges as to the qualifications/disqualifications and eligibility of members of Parliament are decided in accordance with one single and definite measure; otherwise there can be vastly divergent and differing approaches which could be taken by various Returning Officers or Election Tribunals as per their reading and understanding of the Constitution. This in turn has the potential of leading to and rendering any election controversial bearing in mind that there are 1070 constituencies and if, based on past statistical data, there are on average 10. candidates in each constituency, there will be more than 10,000 aspirants for elected office in the National and Provincial Assemblies who will require scrutiny and evaluation on the touchstone of Articles 62 and 63 of the Constitution. In the last general elections cases did come up where contradictory and inconsistent decisions were handed down by Returning Officers for want of guidance through precedent.
4. The question as to which Court will have jurisdiction to make the declaration or conviction envisioned by Articles 62 and 63 will also need to be decided because the said Constitutional provisions cannot be rendered redundant for the reason that the Constitution does not identify the Court which is competent to render the declaration under Article 62(1)(f) or the conviction under Article 63(1)(g). Likewise the procedure of the Court and the standard of proof would be relevant considering that a member of Parliament who has been elected by the people is to be unseated. I, however, defer to the view that these questions will be decided in a more appropriate case. {{URDU TEXT}} ' ASIF SAEED KHAN KHOSA, J. -- Through these petitions the petitioners have sought issuance of a declaration by this Court that Mian Muhammad Nawaz Sharif, the Prime Minister of Pakistan, is not an "honest" person within the purview of Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973 as he had a statement on the floor of the Majlis-e-Shoora (Parliament) on August 29, 2014 which statement, according to the petitioners, was factually incorrect. The petitioners also want that after issuance of such a declaration a further declaration may be issued that Mian Muhammad Nawaz Sharif has become disqualified from being. a member of the Majlis-e-Shoora (Parliament). I agree with the Hon'ble Chief Justice that these petitions are liable to be dismissed as the premise on the basis of which they have filed is factually non-existent. I would, however, avail of this opportunity to make some general observations about the provisions of Articles 62 and 63 of the Constitution which provisions deal with qualifications and disqualifications respectively for candidature and membership of the Majlis-e-Shoora (Parliament) and the same qualifications and disqualifications also apply to candidature and membership of the Provincial Assemblies by virtue of the provisions of Article 113 of the Constitution. Of late the said Constitutional provisions have become a part of the national narrative and, therefore, it is important to know and Understand as to why the said provisions were made a part of our Constitution, what is the import and scope of those provisions and why the said provisions have so far failed Lo achieve their full potential or produce the intended results.
2. The emphasis en purity of character of the elected representatives in this Land of the Pure is not without a reason. In my capacity as a young lawyer I had ventured to write about it in an article titled 'Islamic Provisions in the Constitution of Pakistan, 1973' (PLD 1995 Journal 17). I understand that what I had written about twenty years ago still holds good and may be relevant even today. This is what I had written:-- "There are different theories as to why the Muslims of India demanded a separate homeland for themselves in the first half of this century. Some believe that it was for economic reasons and others maintain that it was, purely on religious compulsions.
However, the fact remains, and there is no denying it, that it was in the name of Islam that Pakistan emerged on the map of the world and the grunt/ norm of the new State and its society, which came to be known as the Ideology of Pakistan, was nothing but Muslim faith. Before embarking upon the task of framing of our first Constitution this ideology was translated into words in precise form by the first Constituent Assembly of Pakistan in a resolution, known as the "Objectives Resolution", provided as follows:--- "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; ' This Constituent Assembly representing the people of Pakistan resolves to frame a Constitution of the sovereign independent State of Pakistan; ' Wherein the State shall exercise its powers and authority through the chosen representatives of the people; ' Wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed; ' Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in 'accordance with the teachings and requirements of Islam as set out in the Holy Quran and the Sunnah; ' Wherein adequate provision shall be made for the minorities to profess and practice their religious and develop their cultures; ' Wherein the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed; ' Wherein shall be guaranteed fundamental rights including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, worship and association, subject to law and public morality; ' Wherein adequate provisions shall be made to safeguard the legitimate interests of minorities and backward and depressed classes; ' Wherein the independence of the Judiciary shall be fully secured; ' Wherein the integrity of the territories of the Federation, its independence and all its rights including its sovereign rights on land, sea and air shall be safeguarded; ' So that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity."
' In the successive Constitutions that were adopted by the people of Pakistan over the last four decades the principles and provisions of that Objectives Resolution were added as a Preamble thereto till the year 1985 when, through the insertion of Article 2-A in the Constitution of Pakistan, 1973, it was categorically provided that " principles and provisions set out in the Objectives Resolution reproduced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly.
' There are certain remarkable Islamic Features of this Objective Resolution, now a substantive part of our Constitution, which are hard to escape notice. For instance a new dimension has been given therein to the concept of sovereignty of Parliament. Although sovereignty of Almighty Allah over the entire universe has been acknowledged yet the State has been recognized as the delegate thereof which is to exercise that sovereignty through chosen representatives of the people within the limits prescribed by Almighty Allah as a sacred trust. Thus, while conceding sovereignty to a democratically elected Parliament the Constitution simultaneously circumstances that sovereignty by confining it to the limits prescribed by Almighty Allah. This is in exact conformity with a Muslim's belief that he may be free to make his own choices in life but he may not overstep the limits prescribed by his Creator.. Looked at in this perspective the Constitution of Pakistan, conforming to the Islamic perceptions, recognizes democracy as the only mode of governance --- but a democracy which does not come in conflict with a Muslim's faith. To an outsider this may appear to be enigmatic but we the Muslims of Pakistan have no difficulty in understanding and applying this concept. It, therefore, fits into the scheme when the Objectives Resolution refers to "the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam" and envisions a State "wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and the Sunnah". The scheme, unmistakably, is the establishment of a modern and democratic Islamic State in fulfillment of the wishes of the Muslims of this region and the manifestations of this scheme are to be found spread over the entire Constitution of Pakistan.
' Article 1(1) of the Constitution of Pakistan, 1973 provides that "Pakistan shall be a Federal Republic to be known as the Islamic Republic of Pakistan, hereinafter referred to as Pakistan". It may be pertinent to point out that Pakistan has been the first country in modern history to introduce the concept of an "Islamic Republic" which was later on also adopted by Iran and Libya. Not only the name of the country itself but also the political system of its governance incorporated therein shows the wishes of its people to blend modernity with their faith. Article 2 of the Constitution, providing that "Islam shall be the State religion of Pakistan", again highlights the same theme and accomplishes the very object of creation of Pakistan. Under Article 41(2) of the Constitution the President, who is to be the Head of State of this Islamic Republic, has to be Muslim. Under Article 50 of the Constitution the Parliament of the State is to be called the "Majlis-e-Shoora" after the Islamic traditions. The qualifications for being elected to the Majlis-e-Shoora or the Provincial Assemblies also have a distinct Islamic overtone and the following provisions of Article 62 of the Constitution bear an ample testimony to that:-- "(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 abstains from major sins; (f)he is sagacious, righteous and non-profligate and honest and ameen; (g)he has not been convicted for a crime involving moral turpitude or for giving false evidence; (h)he has not, after the establishment of Pakistan, worked against the integrity of the country or opposed the Ideology of Pakistan avoided that the disqualifications specified in paragraphs (d) and who is a non-Muslim, but such a person shall have good moral reputation;"
' These qualifications for the legislators are understandable if it is kept in mind that such members are to exercise the sovereignly of Almighty Allah as His delegatees by way of-a "sacred trust".
' Even the laws that are to be made by such legislators cannot cross the limits prescribed by Almighty Allah because by virtue of the Objectives Resolution read with Article 2-A of the Constitution the sovereignty of the Majlis-e-Shoora does not transcend the limits prescribed by Almighty Allah. To clarify any doubt in this respect Article 227(1)' of the Constitution unmincingly provided as follows:-- "All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such Injunctions."
' Under Article 228 the Constitution has created a Council of Islamic Ideology which is to perform the following functions under the Article 230(1) of the Constitution:-- "(a) to make recommendations to Majlis-e-Shoora (Parliament) and the Provincial Assemblies as to the ways and means of enabling and encouraging the Muslims of Pakistan to order their lives individually and collectively in all respects in accordance with the principles and concepts of Islam as enunciated in the Holy Quran and Sunnah; (b)to advise a House, a Provincial Assembly, the President or a Governor on any question referred to the Council as to whether a proposed law is or is not repugnant to the Injunctions of Islam; (c)to make recommendations as to the measures for bringing existing laws into conformity with the Injunctions of Islam and the stages by which such measures be brought into effect; and (d)to compile in a suitable form, for the guidance of Majlis-e-Shoora (Parliament) and the Provincial Assemblies, such Injunctions of Islam as can be given legislative effect."
' The functions of the Council of Islamic Ideology are primarily advisory and recommendatory in nature and its advice or recommendation is not self-executor.
' The adjudicatory jurisdiction in this respect is conferred by Chapter 3A of the Constitution on the Federal Shariat Court which has the following jurisdiction under Article 203D(1) of the Constitution: "The Court may, either of its own motion or on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam, as laid down in the Holy Quran and Sunnah of the Holy Prophet, hereinafter referred to as the Injunctions of Islam."
' Under the other provisions of Article 203D of the Constitution any law or provision of law declared by the Federal Shariat Court to be repugnant to the Injunctions of Islam is, to the extent of such repugnancy, to cease to have effect on a date fixed by the Court for the purpose. An appeal in this respect is provided before the Shariat Appellate Bench of the Supreme Court of Pakistan under Article 203F of the Constitution.
' In Chapter 2 relating to the Principles of Policy the Constitution gives top priority to the State's adoption of a social policy in consonance with the State religion, i.e. Islam. Article 31 of the Constitution, laying down the first Principle of Policy, provides as follows:-- "(1) Steps shall be taken to enable the Muslims of Pakistan, individually and collectively, to order their lives in accordance with the fundamental principles and basic concepts of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to the Holy Quran and Sunnah.
(2) The State shall endeavour, as respects the Muslims of Pakistan,-- (a)to make the teaching of the Holy Quran and Islamiat compulsory, to encourage an facilitate the learning of Arabic language and to secure correct and exact printing and publishing of the Holy Quran; (b)to promote unity and the observance of the Islamic moral standards; and
(c) to secure the proper organization of zakat, ushr, auqaf and mosques."
' Likewise, Article 37, dealing with the Principles of Policy regarding promotion of social justice and eradication of social evils, provides in its clauses (g) and (h) that the State shall "(g) prevent prostitution, gambling and taking of injurious, drugs, printing, publication, circulation and display of obscene literature and advertisements; (h)prevent the consumption of alcoholic liquor otherwise than for medicinal and, in the case of non-Muslims, religious purposes;"
' In the economic field the Constitution of Pakistan, in its Article 38(f), requires the State to "eliminate riba as early, as possible" and Article 31(2)(c) thereof requires the State "to secure the proper organization of zakat" and ushr so that a truly there State could be established in Pakistan.
' One can notice inthe constitution of Pakistan an Islamic tilt even in the matter of foreign policy to be by the State Article 40 of the Constitution provides that:-- "The State shall endeavour to preserve and strengthen fraternal relations among Muslim countries based on Islamic unity, support the common interests of the peoples of Asia, Africa and Latin America, promote international peace and security, foster goodwill and friendly relations among all nations and encourage the settlement of international disputes by peaceful means."
' This survey of the Constitution of Pakistan, 1973 shows, and shows very clearly, that the wishes of our forefathers who had given great sacrifices for the creation of a separate homeland for the Muslims of this region have found full expression in the Constitution of this homeland. As seen above the Constitution envisions a modern, democratic and welfare Islamic State but, unfortunately, practically we have not been able to travel much in either of those directions so far.
Now the need of the hour is to give full effect to that expression so that the true objective behind the creation of this State is accomplished and justified."
3. I was even younger when I had written an article titled 'Qualifications for Candidates: A Constitutional Puzzle' (PLD 1988 Journal 272) about twenty-seven years ago commenting upon various obscurities and impracticalities ingrained in some parts of Articles 62 and 63 (as they existed then) of the Constitution of the Constitution of the Islamic Republic of Pakistan, 1973. I believe that the. obscurities and impracticalities' embedded in those provisions of the Constitution and highlighted by me subsist till date I had commented as follows:-- "The very purpose of having a written Constitution for a country is to ensure certainty and clarity in respect -of. various matters about which the Constitution makes express stipulations. If the desired objectives of clarity and certainty are not achieved by the provisions of Constitution and if the Constitutional provisions themselves create more ambiguities and uncertainties then the desired object is frustrated and defeated. One such example of Constitutional uncertainties and obscurities can be found in Articles 62 and 63 of the Constitution of the Islamic Republic of Pakistan, 1973 as amended upto date. These two Articles deal with qualifications and disqualifications respectively for candidature and membership of the Majlis-e-Shoora (Parliament) and by virtue of Article 113 the same qualifications and disqualifications have been adopted for candidature and membership of Provincial Asses lies also. Certain ambiguities and confusions by these provisions ,o the Constitution are discussed in the following paragraphs.
At the very outset the rationale of having separate provisions about qualifications and disqualifications is not easy to understand. A person who is not possessed of the requisite qualifications is obviously to be disqualified and, conversely, a person who incurs or suffers from of the specified disqualifications can obviously be termed as a peon not qualified. Thus, the distinction made between qualifications and disqualifictions is, on the face of it, illusory. In this regard one may refer to the opening words of Article 62 which, although dealing expressly with "qualifications" only, provide in negative terms that "A person shall not be qualified to be elected or chosen as a member The proviso inserted after paragraph (h) of Article 62 expressly refers to the qualifications contained in paragraphs (d) and (e) as "the disqualifications specified in paragraphs (d) and (e) as "the disqualifications specified in paragraphs (d) and (e)". the negative terminology used in the opening words of Article 62 and the mentioning of "qualifications" contained in paragraphs (d) and be) by the said proviso as "disqualifications" shows that the suspected distinction between qualifications and disqualification is quite unreal. This distinction is further blurred by the provisions of Section 68(1)(b) of the Representation of the People Act, 1976 which provides that an Election Tribunal can declare the election of a returned candidate to be void if "the returned candidate was not, on the nomination day, qualified for, or was disqualified from, being elected as a member". Therefore, if the qualifications and disqualifications were to be bracketed together then there does not appear to be any need for having two separate lists in this respect. Despite this the only objection that can be raised against the existence of two separate lists in this regard is one of superfluity and nothing more. But the objection can be more serious if due to this superfluity an apparent conflict and contradiction creeps into these two separate provisions. In such a situation an attempt at resolving the conflict can damage the spirit of one provision or the other and may also, in a given case, call for committing violence upon the phraseology of the Constitutional provisions in an attempt to harmonize the seemingly inconsistent provisions. One such example of apparently conflicting provisions within these two Articles is the conflict between the languages and requirements contained in Article 62(g) and Article 63(1)(h). But pore about it later.
' The amended Article 62 of the Constitution uses such phraseology and terminology which creates confusion in the minds of the citizens and may produce nightmares for lawyers and Courts. Take for example clause (d) of the said Article which provides that a person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless:-- (d)he is of good character and is not commonly known as one who violates Islamic Injunctions."
' Now the Constitution does not define as to what is meant by the words "good character" nor does, to my mind, any other statute. A person's character and a judgment about it can be based on a host of circumstances and relates essentially to subjective assessment. A character may be good for one but not good enough in the eyes of another. And then what kind of proof can or cannot be led in this respect before the Returning Officer at the time of scrutiny of nomination papers or before the Election Tribunal in an Election Petition? The object of the Constitution, as observed earlier, is to create certainty in laws and conduct and not to codify confusion and ambiguities.
Similarly the requirement of "commonly known" in the above reproduced clause (d) of Article 62 as the standard of proof in this respect makes the job of the Returning Officer, the Election Tribunal or a Court of law very difficult in its application of the law of evidence. Is it not that the successful election of the returned candidate itself is indicative of the fact that he is not commonly known to be a person who violates Islamic Injunctions? On the other hand if the society as a whole has become so morally bankrupt that it elects a person who is commonly known to be one who violates Islamic Injunctions then the testimonies of members of the same society before the Election Tribunal regarding common knowledge are by themselves not safe to be relied upon. Even otherwise the Constitution uses the words "Islamic Injunctions" without defining or elaborating the same. Although Article 230(1)(d)* of the Constitution requires the Council of Islamic Ideology to compile, in a suitable form, the "Injunctions of Islam" yet Unfortunately, ever since its certain in 1973, it has failed to do the needful. The words "Injunctions of Islam, as laid down in the Holy Quran and Sunnah of the Holy Prophet, hereinafter referred to as the Injunctions of Islam" much help in this context. There is no exhaustive list of Islamic Injunctions given by any sect of Islam. Sometimes even the local social values are equated with Islamic Injunction. There may even be disagreements between various religious scholars and sects as to what is or is not an Injunction and how it is different from a mere disapproval. The framers of the Constitution (or those who brought about these amendments therein) jumped in where angels had feared to tread. The vague and unspecific language used in this clause is very hard to apply in practical terms and adds nothing but confusion to the election laws.
' Clause (e) of Article 62 is not much different. It lays down that a person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless.
"(e) he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins."
' This is a comprehensive provision but is comprehensively obscure. The idea is to ensure the election of pious Muslims but the enforceability of this clause in a Court of law is nothing but a nightmare. The requirement of adequacy of knowledge of Islamic teachings has been laid down without providing a yardstick to judge the same. In some interviews for jobs the knowledge by heart of Dua-i-Qanoot is considered sufficient knowledge of Islamic teachings while on the other hand a scholar from Al-Azhar University in Cairo may confess of his inadequacy of such knowledge. It is also said that the height of knowledge is to krl'ow that one does not know much.
Then there may be a debate as to what is included in the 'Islamic teachings'. Does it mean the Holy Quran and Sunnah or does it also extend to various teachings and interpretations given by different sects? As far as the requirement of practicing the obligatory duties prescribed by Islam is concerned the Constitution does not specify as to what are these obligatory duties. If the `obligatory duties' refer only to the Taraiz' like Namaz, Rozah, Zakat and Hajj then there could be some certainty attached to the Constitutional provision in this respect but the Islamic scholars include a host of other duties as obligatory duties prescribed by Islam both in the religious and social fields. Again the requirement of abstaining from `major sins' has been included in this cause without any specifics. The religious scholars do not agree on an exhaustive list of mnajor sins. Some say that the major sins are the `Gunah-i-Kabirah' but again there is no agreed and exhaustive list of such sins available. Some scholars are of the opinion that only those sins are major sins against which Had is enforceable but others given it an enlarged interpretation. According to some Ahadith of the Holy Prophet (P.B.U.H.) even disobedience towards parents and giving of false evidence are also major sins. Some offences or sins may be greatly reprehensible socially but may still not be included in the list of major sins. Again the use of the word 'abstains' is open to many interpretations. It is not clear whether such a person should be abstaining from the major sins at or about the time of his nomination for elections or should have abstained from such sins throughout his life. Whether some lapses in the distant past could also be contemplated to be within the scope and application of the words 'abstains' which, by the use of the present tense, could only have an application to a person's present conduct and not his past? ' Similarly clause (f) of Article 52 of the Constitution provides a feast of legal obscurities. It lays down that a person shall not be qualified to be elected or chosen as a member of Majlis-e- Shyoora (Parliament) unless:-- "(f)he is sagacious, righteous and non-profligate and honest and ameen."
' Whether a person is 'sagacious' or not depends upon a comprehensive study of his mind which is not possible within the limited scope of election authorities or Courts involved in election disputes.
The acumen or sagacity of a man cannot be fathomed. The same is true of being 'righteous' and 'non-profligate'. These factors relate to a man's state of mind and cannot be properly encompassed without a detailed and in-depth study of his entire life. It is proverbial that Devil himself knoweth not the intention of man. So, why to have such requirements in the law, nay, the Constitution, which cannot even be defined, not to talk of proof. The other requirement qua being 'honest' and 'ameen' have a clear reference towards the Holy Prophet's (P.B.U.H.) attributes a Sadiq' and Ameen', this as well as other requirements envisaged by the preceding clauses of Article 62, if applied strictly, are probably incorporated in the Constitution to ensure that only the pure and pious Muslims (living upto the standard of a prophet of God Almighty) should be elected to our Assemblies so that, as provided in the Preamble, the sovereignty of God Almighty could be exercised by them in the State of Pakistan as a sacred trust. But, instead of being idealistic, the Constitution of a country should be more practicable. The line of prophet hood has long been discontinued and now we are left with sinful mortals. The political arena in our country is full of heavyweights whose social and political credentials outweigh their moral or religious credentials.
Even the electorate in our country has also repeatedly demonstrated their preference for practical wisdom and utility over religious Puritanism. Thus, the inclusion of unrealistic and ill-defined requirements in the Basic Law of the Land renders the same impracticable and detracts from the sanctity which the Constitution otherwise deserves.
' Now coming back to the question of possible conflict between the provisions of Article 62 dealing with `qualifications' and those of Article 63 dealing with `disqualifications' one such example of seeming conflict can be found in the provisions of Article 62(g) and Article 63(1)(h). Article 62(g) provides that a person shall not be qualified to be elected or chosen as a member of Majlis- eShoora (Parliament) unless:-- "(g) he has not been convicted for a crime involving moral turpitude or for giving false evidence;"
' On the other hand Article 63(1)(h) provides that a person shall be disqualified from being elected or chosen as, and from being a member of the Majlis-e-Shoora (Parliament) if:- "(h) he has been, on conviction for any offence which in the opinion of the Chief Election Commissioner involves moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period Of five years has elapsed since his release;"
' Now Article 62(g) contemplates that anybody who has been convicted for a crime involving moral turpitude or for giving false evidence, irrespective of the quantum of sentence or the lapse of any length of time since his release, is not qualified to be elected. But at the same time Article 63(1)(h) provides that such a conviction is not to disqualify a person if consequent upon his conviction his sentence was imprisonment for a period of less than two years or even where his sentence was imprisonment for a period of two or more years but a period of five years has elapsed since his release. Thus, on the face of it, a person who has been Convicted. and sentenced to imprisonment for a period of less than two years or has been convicted and sentenced to imprisonment for a period of two years or more but a period of five years has elapsed since his release may not be disqualified under Article 63(1)(h) but he is also not qualified by virtue of Article 62(g). Therefore, as both these provisions stand, a person may not be disqualified but at the same time he may also not be qualified to be elected. A concession given by Article 63(1)(h) has been whittled down by Article 62(g) and if Article 62(g) is given its effect then Article 63(1)(h) is rendered redundant. It is a cardinal principle of interpretation of Constitutions that redundancy cannot be presumed or lightly inferred. In an appropriate case the honourable superior Courts of Pakistan may have to try hard to reconcile and harmonize these two seemingly inconsistent provisions of the Constitution so as to ensure the survival of both these provisions.
' The above discussion would show that the vague, uncertain, obscure and conflicting terminology used in different provisions of Articles 62 and 63 of the Constitution 'may be a result of bad draftsmanship or ignorance of the requirement of exactitude so essential to all legal and Constitutional instruments yet, as it stands, it is bound to confuse the electorate at large, hound the candidates and their voters, embarrass the Returning Officers at the time of scrutiny of nomination papers, confound the Election Tribunals and become a nightmare for the lawyers and Courts in the years to come. It is about time that the appropriate quarters should take a proper remedial step in this respect at the earliest opportunity."
4. It is unfortunate that the nightmares of interpretation and application apprehended and anticipated by me as a young lawyers more than a quarter of a century ago are presently gnawing the Returning Officers, Election Tribunals and the superior Courts of the country in the face but those responsible for rationalizing 'the troublesome provisions of the Constitution through appropriate amendments of the Constitution have slept over the matter for so long and they still demonstrate no sign of waking up. As long as the highlighted obscurities and impracticalities are not addressed and remedied nobody should complain that the Returning Officers, Election Tribunals and the superior Courts of the country are generally unsuccessful in catching the candidates with bad character or antecedents in the net of Articles 62 and 63 of the Constitution, particularly when the electorate is quite happy to elect such candidates with sweeping majorities While in full knowledge of their character and antecedents. Let us not shy away from acknowledging the hard reality that there is a disconnect between our Constitutional morality and our political ethos. There are no qualms of conscience when through a Constitutional and legal process a person is ousted from an elected chamber on account of his academic degree being fake and forged but he is returned by the electorate to the same chamber with a bigger majority and he triumphantly reenters that chamber while flashing a sign of victory. The sign so shown or flaunted proclaims victory of political expediency over Constitutional values and such attitudes of our society call for serious reflection and soul-searching.
5. This reminds me of George Bernard Shaw who had observed that "Democracy is a device that ensures we shall be governed no better than we deserve". Abraham Lincoln had once remarked: "Let me not be understood as saying that there are no bad laws, nor that grievances may not arise for the redress of which no legal provisions have been made. I mean to say no such thing. But I do mean to say that although bad laws, if they exist, should be repealed as soon as possible, still, while they continue in force, for the sake of example they should be religiously observed". If the Constitutional provisions discussed above cannot be put to practical use due to their obscurities or practicalities then we may pay heed to baron de Montesquieu who had declared that "Useless laws weaken necessary laws". It may be well to remember that laws and institutions, like clocks, must occasionally be cleaned, wound up and set to true time. Even the old bard William Shakespeare had written in 'Measure for Measure':-- "We must not make a scarecrow of the law, Setting it up to fear the birds of prey, ' And let it keep one shape, till custom make it, Their perch and not their terror."
' In the end I may observe that insistence upon complete virtue in an ordinary mortal may be unrealistic and puritanical behaviour of an ordinary human may have a tendency of making him inhuman. It may be true that humans are the best of Almighty Allah's creations but the divine structural design never intended an ordinary human being to be perfect and free from all failings, frailties or impurities. There may, thus, be some food for thought in what Abraham Lincoln had said about ordinary folks when he had observed that "It has been my experience that folks who have no vices have very few virtues".