LRIP

Assessing Article 62 and Article 63 of the Constitution of Pakistan

By Advocate Faisal Nasir

The constitution is the supreme law of the land, and all other laws are enacted with the intention of not contradicting or violating the foundation rules established by the constitution. It establishes certain fundamental guidelines for the smooth functioning of government in the best interests of the state and its citizens. Pakistan’s constitution has been amended on multiple occasions in order to enhance its functioning. Pakistan is a democratic country, and democracy’s aim is to create an ideal society. Citizens vote and elect their representatives in elections so that the candidates they choose represent them in parliament and speak out for their needs and demands as citizens. This process of electing members to the parliament is governed by the conditions outlined in the Constitution of the Islamic Republic of Pakistan, 1973, which establishes the basic structure of Pakistani government and guarantees citizens’ rights through its articles. Articles 62 and 63 of the Pakistani constitution define the criteria for election of members of the Majlis-e-Shoora (Parliament). Articles 62 and 63 define the qualifications and disqualifications for an individual to become a member of parliament by contesting election. Article 63A defines disqualification on grounds of defection. The debate over these articles is extensive, and in order to evaluate articles 62 and 63, one must first understand the foundation of these articles.

Article 62 (Qualifications for Membership of Parliament):

This article provides the qualifications which must be fulfilled by a person if he is desirous to become the member of Majlis-e-Shura (Parliament). The requirements which must be fulfilled by a person to be chosen as a member of parliament include that, he must be a citizen of Pakistan, having the requisite age of 25 years in case of National Assembly and 30 years in case of senate, enrolled as a voter in any part of Pakistan or in any area where he seeks membership, having good character not commonly known as violator of Islamic injunctions, having adequate knowledge of Islamic teachings, practices obligatory duties and abstains from major sins (in case of a non-muslim good moral character would be the requisite), sagacious, righteous, non-profligate, honest and amen, never worked against the integrity of the country or opposed the ideology of Pakistan.

Article 63 (Disqualifications for Membership of Parliament):

Where article 62 provides qualifications, the conceding article providesclauses for disqualifying a candidate to be elected as a part of parliament. The conditions for disqualification of membership include a person of unsound mind (declared by a competent court), undischarged insolvent, holding citizenship of some other country, holding an office of profit in the service of Pakistan, serving in any statutory body owned and controlled by government, citizen of Pakistan by virtue of section 14(B) of Pakistan Citizenship Act, 1951, convicted by a court of competent jurisdiction for acting against ideology of Pakistan or independence of judiciary, ridiculing judiciary or armed forces till completion of five years after his release, convicted for any offence involving moral turpitude for not less than two years imprisonment, dismissed from service of Pakistan for misconduct (till expiry of five years from dismissal), removed or compulsorily retired from service of Pakistan for misconduct (till expiry of three years from removal or compulsory retirement), in service of Pakistan or any statutory body (till expiry of two years from date he ceased to be in service), member of Hindu undivided (exceptions apply), holds office of profit in service of Pakistan (exceptions apply), has not paid loan amount of two million or more from more than one year from due date, defaulted in payment of government dues in excess of ten thousand rupees for over six months, disqualified under any law for time being in force.

Need for Assessment of Article 62 And 63:

Qualifications and disqualifications for membership in parliament are an issue of extensive debate. Under the above two headings, qualifications and disqualifications given under the relevant articles are reproduced in simple and understandable language to bring out the contextual meaning of the clauses. The evaluation and analysis of these articles is critical because the legislature is an essential aspect of a democratic government, and its members are elected by the people to represent their will at the provincial and national levels.The standards established for parliamentary qualifications and disqualifications are designed to bring forth meritorious individuals capable of working effectively for the benefit of the citizens who elect them. Due to their immense importance, Articles 62 and 63 have been repeatedly amended in recent years. General Zia-ul-Haq added five new clauses to Article 62 and twelve new clauses to Article 63 of the constitution for the first time in 1985, which were properly interpreted by the superior courts to bring out their actual meaning and mode of operation.Later, General Pervez Musharraf issued the Legal Framework Order, 2002, which added three more clauses to the disqualification clause, which were opposed by the superior courts, as it upheld their previous interpretations in favour of political candidates. By virtue of the 18th amendment, these articles were once again amended, but this time the process was initiated by a democratic parliament, which resulted in the removal of some of Musharraf’s additions and the retention of General Zia’s additions in their original form.

Types Of Qualifications & Disqualifications:

Keeping in view the provisions of article 62 and 63, the qualifications and disqualifications for membership of parliament can be divided in certain types which make it easy to understand and assess them.

  1. Clear / Primafacie Requirements:

There are certain clauses of the qualification and disqualification provisions which are primafacie (clear on face of it). For instance, the question of citizenship, enrollment as a voter, not less than the required age etc are such things which are clear and easy to understand without need of any judicial interpretation. Such requirements need simple documentary proof for an individual to fall in the qualifying section.

  1. Judicially Determinable Requirements:

Superior Courts, particularly Supreme Court has recently interpreted qualification and disqualification clause and cleared the view on disqualification due to dual-nationality, defaming ridiculing judiciary etc.

  1. Ambiguous & Controversial Provisions:

The provisions of qualifications and disqualifications contain rules which itself are confusing due to their uncertainty and non-implementation. The clauses which are considered ambiguous are the disqualification on basis of default and that of holding fake degree. Confusion in ascertaining meaning of these clauses arises where more than one meaning is given to them in different judgments of superior courts. For instance, a person declared defaulter by a bank would disqualify him or the title of defaulter should be issued by a court of law but a judgment given by Lahore High Court says that a bank declaring its borrowers as defaulters would be taken if the bank was itself a judge. Similarly, disqualification on the basis of holding a fake degree cannot be taken as an immediate reason to disqualify a person because its authenticity would be determined by a competent court and not a board or institution which has issued it. These are the reasons where clauses of article 62 and 63 become ambiguous and cannot give immediate effect.

Suggestions:

Because the judiciary is said to be the custodian of the constitution, the best way to better understand the provisions and articles is to refer them to judicial interpretation, and those that are found to be ineffective can be repealed by passing bills in parliament. Ambiguous clauses of qualifications and disqualifications should be clarified so that the common reader could perhaps develop an accurate description.

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