Article 62 and our democracy | Yasser Latif Hamdani


Our neighbouring Islamic Republic of Iran recently re-elected the reformist candidate Hassan Fereydoun Rouhani as its president. Iran is a full constitutional theocracy where the power is split between Iran’s spiritual leadership, represented by Ayotallah Khamenei, the Supreme Leader, and the Revolutionary Guards, and Iran’s temporal leadership in form of the president and the parliament.

The temporal elected leadership is subservient to the spiritual leadership of the country. The qualifications for the president are that he must be a Shia Muslim Iranian who believes in the Islamic Republic and is trustworthy and pious. These attributes are determined by the Council of Guardians comprising six religious clerics and six lawyers, chosen by the Supreme Leader at the time of the candidacy. The best chance for reform therefore is a reformist cleric. Former President Ahmadinejad was not a cleric but he was no reformist either. The Council of Guardians under the guidance of the Supreme Leader stage manages the conflict between reformists and the orthodox by only allowing pliable people aligned with the “basic principles” of the state. This is why Iran is a theocracy — priests with a divine mission call the shots. It is not a democracy as the word is ordinarily understood.

Pakistan is very much a theocracy in presence of clauses like Article 62 of the Constitution. The only difference between Iran and Pakistan is that in the latter the qualification clause has yet to be used in letter and spirit
Our Islamic Republic of Pakistan claims not to be a theocracy. While the office of the President (since 1956) and Prime Minister (since 1973) are reserved for Muslims of any sect, other than those who have declared Non-Muslim by the 2nd Constitutional Amendment, there is no Council of Guardians sitting in judgment over the candidates for either the President or the Prime Minister. Nevertheless, Pakistan’s constitution, as amended by General Zia-ul-Haq’s military dictatorship, prescribes some stringent qualifications for legislators being elected to the National Assembly and the Senate. For those members who are Muslim (but not for Non-Muslims), there are two qualifications in particular that should be considered carefully. Article 62 (1) (d) reads: “He is of good character and is not commonly known as one who violates Islamic injunctions”. Article 62(1)(e) reads: “He has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins”. Note ‘he’ here is applicable to both men and women as the male gender in the constitution denotes both men and women.

In the poisoned atmosphere of present day Pakistan, it is impossible to even question these clauses. However consider the case of Mr Jinnah, the founding father of Pakistan, if he were contesting elections today. No one would deny that he was non-profligate, honest and incorruptible, hence ameen under Article 62(1)(f) (under which Nawaz Sharif was sent packing). But would the Quaid-e-Azam fit the remainder of the criteria? If we apply the common perception test which Article 62(1)(d) postulates, Mr Jinnah was called ‘Kafir-e-Azam’ for his westernized lifestyle and alleged dietary habits by religious divines like Ataullah Shah Bokhari, Moulana Mufti Mahmood (Fazlur Rahman’s father) and other leaders of Majlis-e-Ahrar, Jamiat-e-Ulema Hind and Jamat-e-Islami. It was also alleged by priests with a divine mission that Mr Jinnah’s knowledge of Islamic teachings and practices was rudimentary at best. Biographers of the Quaid-e-Azam would tell you that he would most probably be unable to recite the Dua-e-Qanoot or sixth Kalima in Arabic, which sometimes candidates for National Assembly seats are required to do so under Article 62. So we see that a fair application of Article 62 would ultimately disqualify even the founding father of the country. Those familiar with history of parliamentary democracy in the subcontinent know that Mr Jinnah ranked as one of the most effective legislators during his 36-year career as a member of the Indian Central Legislature.

Those of us who have consistently criticised the decision of the Supreme Court to use Article 62(1)(f) to disqualify the former Prime Minister of Pakistan have not done so because we have any love for the PMLN or for leaders who may turn out to be corrupt. One opposes the application of Article 62 on principle because it is a Pandora’s box, which once opened would not be closed. Pakistan has many talented men and women who may or may not be religious. The Constitution of Pakistan promises complete religious freedom under Article 20, which necessarily includes the freedom not to follow a religion or follow it according to one’s own lights. Who are going to determine what the obligatory practices and major sins are if not the religious clergy? Would this mean that anyone who disagrees with a certain interpretation of the faith by the religious clergy becomes a bad Muslim and therefore disqualified under Article 62? The answer is yes. This is the problem with introducing religious clauses in the constitution. The future Jinnah or Sir Syed Ahmad Khan or even Allama Iqbal would never make it to the parliament in the Islamic Republic of Pakistan.

So Pakistan claims that it is not a theocracy but the fact is that in presence of such clauses in the Constitution, it is very much a theocracy. The only difference between Iran and Pakistan is that in Pakistan these qualification clauses have not yet been used in letter and spirit. This will now change in quick time. Their most famous victim is going to be Imran Khan, not on sexual harassment allegations mind you for which he ought to be rightly investigated, but for having a lifestyle that is contrary to the Article 62 (1)(d) and 62 (1)(e). The charges levelled by Right Honourable Ayesha Gulalai did not merely allege that Imran Khan sent her objectionable messages but also that he leads a ‘western lifestyle’ and ‘drinks wine’. Just as Nawaz Sharif became a victim to Article 62 to which he doggedly opposed amendments in 2010, Imran Khan is hoist with his own petard.