Constitutional conundrum

The RO could have gone through a series of Ayaz Amir's columns to gauge his commitment to Pakistan and its ideology.

Renowned English columnist and parliamentarian Ayaz Amir has been in the news of late. His nomination papers for the National Assembly seat from Chakwal, which were earlier rejected by a returning officer (RO), for the views he expressed in his articles because they were alleged to be antithetical to the “ideology of Pakistan”, were later thankfully accepted by an election tribunal. The earlier finding was based on the Urdu translation of two of his columns in which he had allegedly decried the country’s ideology.

Mr Amir is an experienced hand who does not mince words while expressing his views on contemporary national issues. This, however, has not denied him a wide readership. As a parliamentarian, he enjoyed respect, both in the House and outside it. He is known for having a close rapport with his electorate and his earlier disqualification had dismayed his supporters. This was on account of certain clauses in the Constitution, which amongst other things, mandates an aspiring candidate to be sagacious, sadiq and ameen.

I recall the first-ever address given by the architect of these clauses, General Ziaul Haq, on television and radio, after subverting the Constitution in July, 1977. He made a vow to the nation that he would hold free and fair elections within 90 days. These 90 days turned into a nightmare as the late president continued with his boots on for 11 years till divine intervention played its role. General Zia himself might have found it difficult to pass scrutiny under Articles 62 and 63, considering that he broke a solemn vow made to the nation.

These Articles have a set of clauses, of which the first category is quite self-explanatory. Age of a candidate, date of retirement, default of loans and government dues and conviction record, if any, fall under this category. Matters pertaining to sagacity, honesty, being sadiq and ameen, non-profligate and working against the ideology of Pakistan come under a domain, which requires interpretation by a court of competent jurisdiction.

Clause (g) of Article 62 reads that a person, after the establishment of Pakistan, should not have worked against the country’s integrity or opposed its ideology. Likewise, clause (g) of Article 63 envisages disqualification of a person if he has been convicted by a court of competent jurisdiction for propagating any opinion or acting in any manner, prejudicial to Pakistan’s ideology. This clause, being specific in character, tends to override the general clause (g) of Article 62. However, there was no such indictment of Mr Amir by a court of law on this count.

The court of jurisdiction can only give meaning to an imprecise constitutional expression which is subject to many interpretations. Under Article 184 of the Constitution, the Supreme Court, being the custodian of the rights of the people has the power to interpret any provision of the Constitution. This sphere cannot be transgressed by any other organ of the state, let alone the ROs, who were only performing administrative cum quasi-judicial functions on the call of the election commission.

The Parliamentary Committee on Constitutional Amendments revisited the provisions of the Constitution with a fine-toothed comb. What made it overlook these Articles is anybody’s guess. Perhaps, these were treated as sleeping clauses. Our parliamentarians need to realise that the Constitution is a living organ and while some of its provisions are lying in hibernation, they can be triggered at any time, depending on the prevailing conditions. Should these provisions be retained by the next parliament, then a set of rules will have to be framed with a view to facilitating the interpretation of some of the debatable clauses.

Mr Amir has been a columnist for almost a quarter century. The RO could have gone through a series of his columns to gauge his commitment to Pakistan and its ideology. The dilemma of people like Mr Amir is understandable. They are living in a time when the Taliban have laid a vociferous claim to the projection and promotion of the ideology of Pakistan.

Published in The Express Tribune, April 11^th, 2013.