The devious Article 62

How pandering to the extremists made it stay

The ongoing scrutiny of the nomination papers raises important questions. Before the forms reach a Returning Officer they are already vetted by over half a dozen departments that include FBR, State Bank, Ministry of Housing and Works, Pakistan Telecommunication Authority, Capital Development Authority (CDA), Sui Southern Gas Pipelines Limited (SSGPL), National Telecommunication Department, Pakistan International Airlines (PIA) and Estate Officers who deal with the Punjab, Sindh, KP and Kashmir houses in Islamabad. No tax-evader, defaulter of loan, utility bills and government dues, or a beneficiary of written-off loans or a NAB convict can get through the net unless he is able to perform a Houdini act. If the idea behind the scrutiny is to cleanse the system and ensure the candidate’s financial integrity this should be enough. All those passing the test should be declared eligible.

But there comes another test then. The threat of Article 62 looms ahead. The way the Article is being applied indicates that the idea is to keep those with liberal view out of the political arena. This was in fact the purpose behind its inclusion in the constitution by General Ziaul Haq.

Clauses (d), (e) and (f) of the Article can be stretched to any extent by an interpreter. Clause (d) requires that the candidate is “of good character and is not commonly known as one who violates Islamic injunctions.” This begs several questions:

Are card and chess playing, kite flying, betting on horse races or pigeon flights to be considered worthy of moral turpitude? Are going to films, hearing or playing music and shaving the beard violations of Islamic injunctions? Even the ulema are divided over what really constitutes a violation of Islamic injunctions. Keeping dogs as pets is considered un-Islamic by the Saudi Salafis. They have also banned women from driving cars on the same ground. The Afghan Taliban banned football by young males wearing shorts. The TTP considers singing or listening to music and viewing videos as violation of Islamic junctions. It also puts shaving the beard in the same category. The extremist network has torched scores of music and video shops and barbers’ saloons. Who will determine what constitutes Islamic injunctions – the Taliban, the Supreme Court or the Parliament?

According to Clause (e) a candidate must have adequate knowledge of Islamic teachings and practices, obligatory duties prescribed by Islam as well as abstain from major sins.

The clause needs to be eliminated altogether as it puts quite a huge chunk of Pakistanis out of the electoral race. The clause ignores that non-practicing Muslims as well as nonconformists and nonbelievers also live in this country. A cursory survey of attendance in mosques would show that many more people fail to offer prayers than those who do. Offering prayers five times a day is an obligatory duty. Interestingly while Article 62 makes all these requirements from the politicians, it excludes the judges, bureaucrats and military officers from its purview.

Clause (f) requires a public representative to be “sagacious, righteous and non-profligate, honest and ameen, there being no declaration to the contrary by a court of law.” Again all these terms are relative and subjective. They leave too much to the interpreter.

The way the ROs are interpreting the provisions of Article 62 should be an eye opener.

Media reports show that the questions put to politicians amount to a religious studies examination. Excerpts from a newspaper would make an entertaining study.

“In Lahore, aspiring candidate Tayyaba Sohail Cheema was told by the provincial election commissioner Punjab that she didn’t look her age. “You don’t seem to be 35, show your face to all around so that people can see that you seem much younger,” the judicial official directed her.

“Another candidate, Saadia Sohail, who was accompanied by her husband Shahid Sohail, got a lesson in parenting. “When your wife will become MNA or MPA, all the arrangements at your home will be ruined and no one will be there to attend your children and they will be ruined,” the same gentleman told her husband.

“On the other hand, aspiring candidate Shoaib Khan Niazi of NA-121, used the occasion to profess his love for his wife. When asked by the Returning Officer…if he had any children, Niazi replied that he did not. He went on to tell the court that he had a wife whom he loved very much and who loved him in return. “I am nothing without my wife,” said Niazi. Seemingly satisfied with this response, the RO then asked him if he offered prayers to which Niazi candidly replied that he did not.” The reporter commented that the scrutiny of electoral hopefuls has seemingly turned into a theatre of the absurd.

Article 62 was the brainchild of military dictator Ziaul Haq as were several other laws militating against women and minorities. The idea behind these “Islamic” provisions was to project the dictator as a champion of Islam and thus provide legitimacy to his military rule. Zia miserably failed to achieve the aim. Even his ardent supporters like the Sharif’s stopped attending his death anniversary after a couple of years. They are now apologetic about the support they extended to the dictator.

The so-called ‘Islamic’ provisions however created an environment conducive to the spread of extremism and militancy. Musharraf’s legacy continues to play havoc in the country.

The candidates of the previous ruling party and the opposition who are being grilled deserve the treatment. The PPP and PML-N could have removed the controversial Article 62 and Article 63 or drastically amend them. They brought about a number of constitutional amendments but shrank back from touching the two Articles. They pandered to the extremist sentiments. Perhaps they also hoped to use them against their political opponents.

Opportunism still runs deep in the political elite irrespective of which party they belong to. In 2007, Imran Khan declared that only angels could pass the test of Article 62. He now supports it as it hurts the PTI’s opponents.

While the constitution is to be implemented, being a part of the basic law does not make a provision sacrosanct. There are enough black laws on the statue book: the notorious FCR being one. The same is the case with Article 62. There is a need to replace it with a more judicious amendment in sync with the spirit of the times.

The writer is a political analyst and a former academic.