111 510 510 libonline@riphah.edu.pk Contact

The hoopla on 62 and 63

Articles 62 and 63 of Pakistan’s constitution is the new proverbial hydra of Pakistan’s multifaceted internal challenges. Introduced into the constitution by the now much-reviled Ziaul Haq, the articles call for prospective members to Pakistan’s federal and provincial legislatures to have been people of sound and credible character; with beliefs supporting the Islamic character of the nation and the two-nation theory as the foundation according to which Pakistan was sought as a separate nation out of the Indian Union; of not having had a criminal record and of carrying a clean reputation; of not having ridiculed the judiciary and the military; and of not having ever worked against the security and interest of the nation. I paraphrase, of course.

The post-Musharraf democratic order under Pakistan’s most liberal political party, in its thorough rehash, found no difficulty in retaining the two clauses without as much as an amendment. Hence, the ongoing imbroglio.

Trust us, the Pakistanis; we will muddle through even with this. But one can imagine that for any other national the detail would make immense sense save perhaps the insistence on an emphatic Islamic orientation.

But then what would one expect from a Ziaul Haq who was a committed Islamist without being subtle? What this hydra has unleashed is an unabated and bedevilling internal debate on what is the ideology of Pakistan, something that found repeated mention during Ziaul Haq’s years, and was historically rooted in distorted and conflicting pronouncements by the founding fathers.

However, “not commonly known as one who violates Islamic injunctions” (one of the defining attributes), leaves a sufficient leeway for anyone deciding on the matter of suitability to establish if a candidate is known for anything vile.

It significantly remains a matter of perception within a community to which he belongs. An infamy will be widely known; in the absence of it the candidate has a strong case for qualification. And none has been left behind if he did not know one or the other prayer or supplication. Yes, it may show those failing the test in a bad light, but is not a disqualification, and none has stood disqualified for such embarrassing failing.

The problem is more with the returning officers who haven’t been sufficiently coached or briefed by the Election Commission. There were only three tangible criteria that should have been resorted to in the hunt for the right quality of aspirants to public office: one, if they had a criminal record; two, if they defaulted on loans or have evaded taxes given their assets and declared properties; and three, if they have been charged for forgery or cheating on account of possessing counterfeit educational degrees that they may have submitted to qualify for a member of the legislature.

The FIA, the courts, NAB, the FBR and the banks between them could have easily determined a candidate’s suitability to seek nomination. The Election Commission for all its plaudits, well-meaning intentions and summary nobility has really messed up in not thinking through the difficulties that were bound to emerge with ROs who have only one such precedent before them of strict application of Articles 62 and 63 – the Zia years.

That is when the kalmas and the duas found currency. After then, despite the clauses being there, nobody paid much heed till this time when the constitution has been abluted with democratic waters. Why then the commotion?

But, before we treat Zia too harshly, here is a composite view of the original 1973 Constitution as it stood, unadulterated yet with Articles 62 and 63, that are now the bane:

• The name ‘Islamic Republic of Pakistan’ is selected for the state of Pakistan.

• Islam is declared the ‘state religion’ of Pakistan.

• Steps shall be taken to enable the Muslims of Pakistan, individually or ‘collectively’, to order their lives in accordance with the fundamental principles and basic concepts of Islam.

• Steps shall be taken to make the teaching of the Quran and Islamiyat compulsory, to encourage and facilitate the learning of Arabic as a language and to secure correct and exact printing and publishing of the Quran.

• Proper organisation of Zakat, Waqf and mosques is ensured.

• The state shall prevent prostitution, gambling and consumption of alcohol, and printing, publication, circulation and display of obscene literature and advertisements.

• Only a Muslim will be qualified for election as president (male or female) and prime minister (male or female).

• All existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Quran and Sunnah and no law shall be enacted that is repugnant to such injunctions.

• A Council of Islamic Ideology shall be constituted, referred to as the Islamic Council. The functions of the Islamic Council shall be to make recommendations to parliament and the provincial assemblies about the ways and means of enabling and encouraging the Muslims of Pakistan to order their lives in accordance with the principles of Islam.

• The president or the governor of a province may, or if two-fifths of its total membership so requires, a house or a provincial assembly shall, refer to the Islamic Council for advice on any question as to whether a proposed law is or is not repugnant to the injunctions of Islam.

• For the first time, the constitution of Pakistan gave definition of a Muslim which states: “‘Muslim’ means a person who believes in the unity and oneness of Allah, in the absolute and unqualified finality of the Prophethood of Prophet, Muhammad, and does not believe in, or recognise as a prophet or religious reformer, any person who claimed or claims to be a prophet, in any sense of the word or of any description whatsoever, after Muhammad.”

• The state shall endeavour to strengthen the bonds of unity among Muslim countries.

• The Second Amendment (wef September 17, 1974) of the 1973 Constitution declared for the first time the Ahmadiyya community or the Lahore Ahmadiyya Movement for the Propagation of Islam (Lahoris) as non-Muslims.

This is what our most liberal prime minister, Zulfikar Ali Bhutto, ordained for his countrymen in the new and the only constitution. He was ridden with compulsions, no doubt, but also had a vision of creating an Islamic fraternity. Was it a bad idea? It remains to be seen.

The writer is a retired air-vice marshal of the Pakistan Air Force and served as its deputy chief of staff. Email: shhzdchdhry@yahoo.com

Shahzad Chaudhry, "The hoopla on 62 and 63," The News. 2013-04-09.