Revisiting Articles 62 and 63

The polling day is still three weeks away but with the publication last Friday of the final list of candidates cleared by the Election Commission of Pakistan (ECP), it is already clear who won and who lost.

The winner is the same class of tax cheats, loan defaulters, looters of public money and other parasites which dominated the last parliament and whose foremost concern is to use their position to preserve the country’s rotten political and socio-economic system which concentrates power and wealth in the hands of a small privileged class of hereditary politicians. And the losers are the millions of ordinary Pakistanis who have been hoping for a real political change through the ballot box that would rid the country of its predatory rulers.

After a 14-day period during which the eligibility of nearly 25,000 candidates was examined under the criteria laid down in Articles 62 and 63 of the constitution, no one has been disqualified for tax evasion, non-filing of tax returns, defaulting on payment of bank loans or for false declaration of assets and liabilities.

The fact that hundreds of those who have abused public trust to enrich themselves massively, cheated on the payment of their taxes or committed other misdeeds which disqualify them for election have been cleared, testifies to their control over virtually every institution of the state.

Doubts about the ability, if not also the willingness, of the ECP to implement Articles 62 and 63 in their true spirit have been heightened by reports that it is backtracking on its earlier announcement on the setting up of a permanent scrutiny cell comprising representatives of the ECP, the SBP, the FBR, the NAB and Nadra and empowered to delve into the record of the candidates, also after their election.

The new cell was to be part of the political finance wing of the ECP, tasked with inquiring into the annual assets declarations of members of the legislatures. That wing too, it transpires now, is not likely to see the light of day. The ECP has evidently buckled under the pressure of our entrenched political class.

In response to media criticism of the scrutiny process, the FBR was reported last week to have launched a belated probe into the tax matters of all the candidates to catch tax evaders. The NAB chairman too declared that the bureau will hold another round of detailed scrutiny of successful candidates after the general election. But given the dismal past record of the FBR and NAB in bringing the tax cheats and the corrupt among the members of our august legislative chambers to book, no one is taking these promises of action against our future defaulting legislators seriously.

The truth is that if Articles 62 and 63 were implemented in full, most of our current politicians would be out of business. It is therefore not surprising that apart from some muted criticism by the PTI, none of our political parties has protested against the failure of the Election Commission to screen out tax evaders, non-filers of tax returns and loan defaulters from the coming elections.

But our political class is not going to content itself with this ‘triumph’. They are now aiming at amendments to Articles 62 and 63 in order to do away with some of the disqualification clauses that they find inconvenient. In fact, the last PPP-led government did introduce a bill in parliament seeking to remove the disqualification on holders of dual nationality and to nullify the judgement of the Supreme Court on this subject. An amended version of that bill was passed last December by the Senate but it was not introduced in the National Assembly because it lacked the necessary two-thirds majority.

In the wake of the debate over the new scrutiny process introduced for the coming elections, there has even been a proposal from some of our politicians that Articles 62 and 63 should be restored in their original form as adopted in 1973. This effort must not be allowed to succeed as it would open the doors to all kinds of manipulation and abuse by our politicians.

It is worth recalling that apart from the conditions of citizenship and age, the original articles had left it to an act of parliament to determine the qualifications and disqualifications for election to the legislatures. In other words, the federal government was free to add, delete or modify these requirements at will if it had the support of a simple majority in the two houses of parliament or, failing that, through an ordinance.

That power, needless to say, can be easily misused by the ruling party for political purposes. It is therefore right that the conditions for membership have now been incorporated in the constitution and can only be modified with the two-thirds majority in both houses needed for a constitutional amendment.

Some of the conditions for membership introduced by Zia and Musharraf – and re-enacted through the 18th Amendment – are no doubt bad law and need to be scrapped or modified. We cannot, for example, leave it to the returning officer – or, for that matter, to any other official or agency of the state – to decide whether a person is a practising Muslim or has adequate knowledge of Islam.

No less important, we need to amend the constitution to spell out clearly that a person who does not file an income tax return, or defaults in the payment of his taxes, or makes a misstatement in his tax returns or in the declaration of his assets, would be disqualified. In addition, there should be a provision for a detailed scrutiny of nomination papers and of declarations of assets and for deterrent punishment of those who make false statements. This scrutiny could be entrusted to the Election Commission, in coordination with the FBR, NAB, the State Bank and Nadra.

But there is one clause of the constitution, namely Article 63 (2), which must be restored in its original form. This clause, as enacted in 1973, provided that all questions on the disqualification of a member of parliament would be referred to the chief election commissioner for decision. Under an amendment sneaked in through the 18th Amendment, the reference to the Election Commission can now be stopped by the speaker of the assembly or the chairman of the Senate. In other words, a member who is disqualified by the constitution can still retain his seat if the speaker or the chairman refuses to refer the question to the commission.

This is not just a theoretical matter. In fact, there are two well-known instances of the misuse of this power last year. First, the speaker refused to refer the question of Gilani’s disqualification to the Election Commission after the then prime minister was convicted of contempt of court. It was only after the intervention of the Supreme Court that he was made to quit his post.

Second, the Senate chairman refused to refer the question of disqualification of Rehman Malik to the Election Commission despite the Supreme Court ruling that since he had made a false declaration on the question of dual nationality, he cannot be regarded as honest and ameen under Article 62. Because of the Senate chairman’s blatantly partisan ruling, the former interior minister still retains his seat in the upper house.

The amendment to Article 63 (2) made surreptitiously through the 18th Amendment is only one instance of the many tricks, big and small, that the Raza Rabbani committee resorted to in order to favour the co-chairman of his party. Together with other members of the committee, Rabbani was rewarded for his services with the grant of Nishan-e-Imtiaz, although Article 259 (2) of the constitution clearly bans the conferment of any such honours on the citizens of the country. It is to be hoped that our judiciary will take suo motu notice of this flagrant violation of the constitution.

The writer is a former member of the Pakistan Foreign Service. Email: asifezdi@yahoo.com