Articles 62, 63 : public conduct
(Hasnaat Malik)
The top court’s senior judge Justice Asif Saeed Khosa has declared that provisions of Articles 62 and 63 of the Constitution apply to a person’s public conduct – that affects others – rather than his private conduct not affecting generality of the populace.
Under Article 62(1)(f) of the Constitution, a person cannot be qualified as member of the national or provincial legislatures, if he is not ‘Sadiq and Ameen’ – truthful and trustworthy.
Two years ago, Justice Khosa in Ishaq Khan Khakwani case had described the words ‘Sadiq’ and ‘Ameen’ as obscure and impracticable and had also talked about ‘nightmares of interpretation and application that they involved’.
However, in his 192-page dissenting note in Panamagate case, Justice Khosa has discussed in detail the applicability of Articles 62 and 63 of the Constitution and tried to settle the longstanding debate on the applicability of the terms.
Justice Khosa says that some provisions of Article 62 of the Constitution certainly contain strong moral overtones but those provisions introduced into the Constitution by a military dictator [General Ziaul Haq] have not been undone by the popularly elected parliaments in the last many decades.
He says as long as the said provisions are a part of the Constitution, the courts are obliged not only to decide matters according to the same but also to enforce them whenever called upon to do so.
“Apart from that if honesty in holders of public offices is a moral issue then one needs not be apologetic about enforcing such a constitutional obligation and if the people at large start ignoring the moral prerequisites in public life then there would be no better forum than the courts … to insist upon the values and ethos of the Constitution,” he notes.
He says one must not forget that the so-called moral provisions of Articles 62 and 63 of the Constitution are meant to be enforced even against those who claim to have popular support or who have already demonstrated their popular endorsement.
“…And thus, popular support or endorsement of the person concerned has absolutely nothing to do with enforcement of those provisions of the Constitution,” he adds.
Justice Khosa says the provisions lay down the threshold for entering into or retaining an elective public office and the courts of the country are mandated to apply and enforce the said thresholds.
“Sitting at the apex of judicial authority in the country, this court is the ultimate guardian not only of the letter but also the spirit of the Constitution even where a section of the society may have some reservations against some provisions of the Constitution,” he writes.
Giving reason for incorporation of the qualifications regarding being ‘Sadiq’ and ‘Ameen’ in Article 62 through an amendment of the Constitution, Justice Khosa observes that in the parts of the world where democracy is entrenched the requirements of honesty, integrity, rectitude and probity in those who aspire for or hold representative public offices or other positions are well understood and insisted upon.
“In such parts of the world public morality is treated differently from private morality and a person in high public office found or caught indulging in an immoral behaviour or undesirable conduct is seldom spared and that is why in order to avoid the ensuing shame and dishonor, he more often than not, resigns or withdraws from the scene on his/her own,” he notes.
Unfortunately, he says, that kind of character is generally not demonstrated in our part of the world as yet and that is why qualifications like ‘honest’ and ‘ameen’ and the likes of them had been codified and incorporated in our Constitution and the relevant election laws so as to provide a constitutional and legal basis and mechanism for getting rid of such elements.Under Article 62(1)(f) of the Constitution, a person cannot be qualified as member of the national or provincial legislatures, if he is not ‘Sadiq and Ameen’ – truthful and trustworthy.
Two years ago, Justice Khosa in Ishaq Khan Khakwani case had described the words ‘Sadiq’ and ‘Ameen’ as obscure and impracticable and had also talked about ‘nightmares of interpretation and application that they involved’.
However, in his 192-page dissenting note in Panamagate case, Justice Khosa has discussed in detail the applicability of Articles 62 and 63 of the Constitution and tried to settle the longstanding debate on the applicability of the terms.
Justice Khosa says that some provisions of Article 62 of the Constitution certainly contain strong moral overtones but those provisions introduced into the Constitution by a military dictator [General Ziaul Haq] have not been undone by the popularly elected parliaments in the last many decades.
He says as long as the said provisions are a part of the Constitution, the courts are obliged not only to decide matters according to the same but also to enforce them whenever called upon to do so.
“Apart from that if honesty in holders of public offices is a moral issue then one needs not be apologetic about enforcing such a constitutional obligation and if the people at large start ignoring the moral prerequisites in public life then there would be no better forum than the courts … to insist upon the values and ethos of the Constitution,” he notes.
He says one must not forget that the so-called moral provisions of Articles 62 and 63 of the Constitution are meant to be enforced even against those who claim to have popular support or who have already demonstrated their popular endorsement.
“…And thus, popular support or endorsement of the person concerned has absolutely nothing to do with enforcement of those provisions of the Constitution,” he adds.Justice Khosa says the provisions lay down the threshold for entering into or retaining an elective public office and the courts of the country are mandated to apply and enforce the said thresholds.
“Sitting at the apex of judicial authority in the country, this court is the ultimate guardian not only of the letter but also the spirit of the Constitution even where a section of the society may have some reservations against some provisions of the Constitution,” he writes.
Giving reason for incorporation of the qualifications regarding being ‘Sadiq’ and ‘Ameen’ in Article 62 through an amendment of the Constitution, Justice Khosa observes that in the parts of the world where democracy is entrenched the requirements of honesty, integrity, rectitude and probity in those who aspire for or hold representative public offices or other positions are well understood and insisted upon.
“In such parts of the world public morality is treated differently from private morality and a person in high public office found or caught indulging in an immoral behaviour or undesirable conduct is seldom spared and that is why in order to avoid the ensuing shame and dishonor, he more often than not, resigns or withdraws from the scene on his/her own,” he notes.
Unfortunately, he says, that kind of character is generally not demonstrated in our part of the world as yet and that is why qualifications like ‘honest’ and ‘ameen’ and the likes of them had been codified and incorporated in our Constitution and the relevant election laws so as to provide a constitutional and legal basis and mechanism for getting rid of such elements.
Courtesy: tribune.com.pk
