SC Interpretation of Sadiq and Ameen in Disqualification of PM Nawaz Sharif

PM Nawaz Sharif has been disqualified from being the prime minister as per Pakistan’s constitution for not being “honest” using the concepts of Sadiq and Ameen.  It is important for the followers of law and constitution to see the debates related to how courts have interpreted these concepts and how they have internalized these concepts through several judgments. 

In 28 July 2017 disqualification of PM Nawaz Sharif, supreme court judgment states: 

Judge Khosa quotes the Balochistan High Court full bench decision by Qazi Fez Issa and gives several verses from Holy Quran to establish the meaning of constitutional requirement for the elected members to be Sadiq and Ameen: Judge Khosa writes on page 156 (full text of his judgement related to these concepts is appended):

121. […..] An appropriate and safe approach towards interpretation of words used in the realm of morality which are not defined is to adopt a limiting and restrictive approach and this is what had been done by a Full Bench of the High Court of Balochistan in the case of Molvi Muhammad Sarwar and others v. Returning Officer PB-15, Musa Khail and others (2013 CLC 1583). Writing for the Full Bench in that case Qazi Faez Isa, CJ (now an Honourable Judge of this Court) had observed as follows:
[…]

16. Lies fall into two different categories, those uttered to deceive and to gain an advantage, in the present case to be able to contest elections, and innocent lies without malice or any intended deception and where no benefit or gain accrues. Almighty Allah states in the Holy Qur’an “… break not the oaths after you have confirmed them” (Surah 16, An-Nahl, Verse 91). “And be not like her who undoes the thread which she has spun after it has become strong, by taking your oaths a means of deception among yourselves…” (Surah 16, An-Nahl, Verse 92). “And make not your oaths, a means of deception among yourselves, lest a foot may slip after being firmly planted, and you may have to taste the evil of having hindered from the Path of Allah and yours will be a great torment” (Surah 16, An-Nahl, Verse 94). “… Whosoever breaks his pledge, breaks only to his own harm, and whosoever fulfils what he has covenanted with Allah, He will bestow on him a great reward” (Surah 48, Al-Fath, Verse 10). “Allah will not punish you for what is unintentional in your oaths, but He will punish you for your deliberate oaths” [if false] (Surah 5, Al-Mai’dah, Verse 89). Whilst liars are castigated the doors of Heaven open to the truthful. “And those who keep their trusts and covenants… shall dwell in Paradise” (Surah 70, Al-Ma’arij, Verses 32-35). “Those who are faithfully true to their trusts and to their covenants … who shall inherit Paradise” (Surah 23, Al-Mu’minun, Verses 8-11). “Allah said: ‘This is a Day on which the truthful will profit from their truth” (Surah 5, Al-Maidah, Verse 119). “0 you who believe! Be afraid of Allah, and be with those who are true” (Surah 9, At-Taubah, Verse 119).
[…]

117. There is no denying the fact that it was in the name of Islam that Pakistan emerged on the map of the world and the grund norm of the new State and its society, which came to be known as the Ideology of Pakistan, was nothing but Muslim faith. Before embarking upon the task of framing of our first Constitution this ideology was translated into words in precise form by the first Constituent Assembly of Pakistan in a resolution passed by it in the year 1949. That resolution, known as the “Objectives Resolution”, inter alia, provided as follows:

“Whereas sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust;”
“Wherein the State shall exercise its powers and authority through the chosen representatives of the people;”
“Wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed;”
“Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and the Sunnah;”

In the successive Constitutions that were adopted by the people of Pakistan from time to time the principles and provisions of that Objectives Resolution were added as a Preamble thereto till the year 1985 when, through insertion of Article 2A in the Constitution of the Islamic Republic of Pakistan, 1973, it was categorically provided that “The principles and provisions set out in the Objectives Resolution reproduced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly”. There are certain remarkable Islamic features of the Objectives Resolution, now a substantive part of our Constitution, which are hard to escape notice. For instance a new dimension has been given therein to the concept of sovereignty of the Parliament. Although sovereignty of Almighty Allah over the entire universe has been acknowledged yet the State has been recognized as the delegatee thereof which is to exercise that sovereignty through chosen representatives of the people within the limits prescribed by Almighty Allah as a sacred trust. Thus, while conceding sovereignty to a democratically elected Parliament the Constitution simultaneously circumscribes that sovereignty by confining it to the limits prescribed by Almighty Allah. This is in exact conformity with a Muslim’s belief that he may be free to make his own choices in life but he may not overstep the limits prescribed by his Creator. Looked at in this perspective the Pakistani Constitution, conforming to the Islamic perceptions, recognizes democracy as the only mode of governance, but a democracy which does not come in conflict with a Muslim’s faith. To an outsider this may appear to be enigmatic but we the Muslims of Pakistan have no difficulty in understanding and applying this concept. It, therefore, fits into the scheme when the Objectives Resolution refers to “the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam” and envisions a State “wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and the Sunnah”. The scheme, unmistakably, is the establishment of a modern and democratic Islamic State in fulfillment of the wishes of the Muslims of this region and the manifestations of this scheme are to be found spread over the entire Constitution of Pakistan. Article 1(1) of the Constitution of the Islamic Republic of Pakistan, 1973 provides that “Pakistan shall be a Federal Republic to be known as the Islamic Republic of Pakistan, hereinafter referred to as Pakistan”. It may be pertinent to point out that Pakistan has been the first country in modern history to introduce the concept of an “Islamic Republic” which was later on also adopted by some other Muslim countries. Not only the name of the country itself but also the political system of its governance incorporated therein shows the wishes of its people to blend modernity with their faith. Article 2 of the Constitution, providing that “Islam shall be the State religion of Pakistan”, again highlights the same theme and accomplishes the very object of creation of Pakistan. Under Article 41(2) of the Constitution the President, who is to be the Head of State of this Islamic Republic, has to be a Muslim. Under Article 50 of the Constitution the Parliament of the State is to be called the “Majlis-e-Shoora” after the Islamic traditions. It is in this context that the qualifications prescribed for membership of the Majlis-e-Shoora (Parliament) or a Provincial Assembly and also for holding some other high offices of the State have a distinct Islamic overtone and the following provisions of Article 62 of the Constitution bear an ample testimony to that:

“(d) he is of good character and is not commonly known as one who violates Islamic Injunctions;
(e) he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins;
(f) he is sagacious, righteous an non-profligate and honest and ameen, there being no declaration to the contrary by a court of law;
(g) he has not been convicted for a crime involving moral turpitude or for giving false evidence;
he has not, after the establishment of Pakistan, worked against the integrity of the country or opposed the Ideology of Pakistan:
Provided that the disqualifications specified in paragraphs (d) and (e) shall not apply to a person who is a non-Muslim, but such a person shall have good moral reputation;”

• See also: Traitor/Foreign Agent Production Factory of Pakistan

These qualifications for the Federal and Provincial legislators and high officers of the State may be quite onerous and hard to meet but, at the same time, understandable if it is kept in mind that such “chosen representatives of the people” and officers, while exercising the powers and authority of the State, are to exercise the sovereignty of Almighty Allah as His delegatees by way of a “sacred trust”. In the context of the issue of corruption by elected representatives in the Majlis-e-Shoora (Parliament) or Provincial Assemblies it may be observed that a faithful adherence to the provisions of Article 62 of the Constitution provides a recipe for cleansing the fountainhead of authority of the State so that the trickled down authority may also become unpolluted. If this is achieved then the legislative and executive limbs of the State are purified at the top and such purity at the top necessarily trickles down to the bottom as well. This recipe ensures clean leadership at the top which may legislate for and administer this “land of the pure” (Pakistan) as true delegatees of the sovereignty and authority of Almighty Allah. That appears to be the constitutional design and as long as the above mentioned provisions are a part of the Constitution the courts of the country are under a sworn commitment to enforce them.

118. The courts and tribunals in the country seized of issues regarding interpretation and application of the provisions of Article 62 of the Constitution have generally been quite circumspect and careful but over time jurisprudence on such issues has evolved and the potential and purpose of the said provisions is being grasped and achieved with a realization that notwithstanding many obscurities and impracticalities ingrained in such provisions the same have to be interpreted, applied and enforced as a command and mandate of the Constitution. In some cases persons were held not to be qualified for being candidates or disqualified from being or remaining as members of the Majlis-e-Shoora (Parliament) or Provincial Assemblies where they had claimed to possess educational qualifications which were fake and bogus, where they had practised cheating and fraud in obtaining the requisite educational qualifications or where they had submitted false declarations and had suppressed the information regarding their holding dual nationalities and a reference in this respect may be made to the cases of Muhammad Khan Junejo v. Fida Hussain Dero and others (PLD 2004 SC 452), Nawabzada Iftikhar Ahmad Khan Bar v. Chief Election Commissioner Islamabad and others (PLD 2010 SC 817), Muhammad Rizwan Gill v. Nadia Aziz and others (PLD 2010 SC 828), Rana Aftab Ahmad Khan v. Muhammad Ajmal and another (PLD 2010 SC 1066), Haji Nasir Mehmood v. Mian Imran Masood and others (PLD 2010 SC 1089), Mudassar Qayyum Nahra v. Ch. Bilal Ijaz (2011 SCMR 80), Syed Mehmood Akhtar Naqvi v. Federation of Pakistan and others (2012 SCMR 1101), Malik Iqbal Ahmad Langrial v. Jamshed Alam and others (PLD 2013 SC 179), Mian Najeeb-ud-Din Owasi and another v. Amir Yar Waran and others (PLD 2013 SC 482), Sadiq Ali Memon v. Returning Officer and others (2013 SCMR 1246), Abdul Ghafoor Lehri v. Returning Officer and others (2013 SCMR 1271), Muhammad Khan Junejo v. Federation of Pakistan through Secretary, M/o Law, Justice and Parliamentary Affairs and others (2013 SCMR 1328), General (R.) Pervez Musharraf v. Election Commission of Pakistan and another (2013 CLC 1461), Allah Dino Khan Bhayo v. Election Commission of Pakistan, Islamabad and others (2013 SCMR 1655), Malik Umar Aslam v. Mrs. Sumaira Malik and others (2014 SCMR 45), Gohar Nawaz Sindhu v. Mian Muhammad Nawaz Sharif (PLD 2014 Lahore 670), Muhammad Ijaz Ahmad Chaudhry v. Mumtaz Ahmad Tarar and others (2016 SCMR 1), Muhammad Siddique Baloch v. Jehangir Khan Tareen and others (PLD 2016 SC 97) and Rai Hassan Nawaz v. Haji Muhammad Ayub & others (PLD 2017 SC 70).

119. In all the above mentioned cases the relevant courts and tribunals were cognizant of the constitutional scheme peculiar to the Islamic Republic of Pakistan wherein the delegated sovereignty of Almighty Allah is to be exercised by the chosen representatives of the people as a sacred trust and, hence, the need to ensure that only those who are ‘honest’ and ‘ameen’ enter into or remain in the highest elected chambers. In the case of Nawabzada Iftikhar Ahmad Khan Bar v. Chief Election Commissioner Islamabad and others (PLD 2010 SC 817) this Court had observed as follows:

“14. The Parliament of any country is one of its noblest, honourable and important institutions making not only the policies and the laws for the nation but in fact shaping and carving its very destiny. And here is a man who being constitutionally and legally debarred from being its member, managed to sneak into it by making a false statement on oath and by using bogus, fake and forged documents polluting the piety of this pious body. His said conduct demonstrates not only his callous contempt for the basic norms of honesty, integrity and even for his own oath but also undermines the sanctity, the dignity and the majesty of the said august House. He is guilty, inter alia, of impersonation — posing to be what he was not i.e. a graduate. He is also guilty of having been a party to the making of false documents and then dishonestly using them for his benefit knowing them to be false. He is further guilty of cheating — cheating not only his own constituents but the nation at large.”

Similarly in the case of Muhammad Rizwan Gill v. Nadia Aziz and others (PLD 2010 SC 828) this Court had observed as under:

“13. And it was to preserve the pureness, the piety and the virtuousness of such-like eminent and exalted institutions that, inter-alia, Articles 62 and 63 of the Constitution and section 99 of the Representation of the People Act, 1976 had declared that, amongst others, the persons who were not of good character; who indulged in commission of major sins; who were not honest; who were removed, dismissed or compulsorily retired from service of Pakistan; who had obtained loans from banks and had not re-paid the same or who had indulged in corrupt practices during the course of elections, would not be allowed to pollute the clearness of these legislative institutions.”

In the case of Muhammad Ijaz Ahmad Chaudhry v. Mumtaz Ahmad Tarar and others (2016 SCMR 1) it was held by this Court that on account of his submitting a false declaration about his educational qualification

“the appellant failed the requirements of rectitude and integrity prescribed in Article 62(1)(f) of the Constitution.”

The case of Muhammad Siddique Baloch v. Jehangir Khan Tareen and others (PLD 2016 SC 97) was no different and this Court had observed therein as follows:

“26. The loss of qualification under Article 62(1)(f) of the Constitution has been visited with removal from elected office under the Constitution in a number of cases including ———————. Weighty reasons have been assigned for adopting and implementing the constitutional mandate as a bar on membership in Parliament. Firstly, the qualifications of a candidate set out in Article 62 of the Constitution are a sine qua non for eligibility to be elected as a Member of Parliament. No time limit for eligibility on this score is given in the Constitution. A person who is untruthful or dishonest or profligate has no place in discharging the noble task of law making and administering the affairs of State in government office. Such faults in character or disposition, if duly established, cannot be treated as transient for the purpose of reposing trust and faith of the electorate and the Constitution in the holder of an elected office under the Constitution. The trusteeship attendant upon the discharge of every public office under the Constitution, whether Legislative, Executive or Judicial is a universally recognized norm. However, our Constitution emphasizes upon it expressly for an elected parliamentary office. The Constitutional norm must be respected and therefore implemented.”

The latest reported case on the subject is that of Rai Hassan Nawaz v. Haji Muhammad Ayub & others (PLD 2017 SC 70) wherein this Court had held as under:

“7. An honest and truthful declaration of assets and liabilities by a returned candidate in his nomination papers furnishes a benchmark for reviewing his integrity and probity in the discharge of his duties and functions as an elected legislator. ——————— 

8. ——————— Where assets, liabilities, earnings and income of an elected or contesting candidate are camouflaged or concealed by resort to different legal devices including benami, trustee, nominee, etc. arrangements for constituting holders of title, it would be appropriate for a learned Election Tribunal to probe whether the beneficial interest in such assets or income resides in the elected or contesting candidate in order to ascertain if his false or incorrect statement of declaration under Section 12(2) of the ROPA is intentional or otherwise. ——————— It is to ensure integrity and probity of contesting candidates and therefore all legislators. ——————— 

15. The object of Section 76A ibid is clearly to promote public interest by ensuring that elected public representatives have untainted financial credentials of integrity, probity and good faith. ——————— 

16. Indeed, honesty, integrity, probity and bona fide dealings of a returned candidate are matters of public interest because these standards of rectitude and propriety are made the touchstone in the constitutional qualifications of legislators laid down in Articles 62 and 63 of the Constitution of Islamic Republic of Pakistan.”

120. There may possibly be yet another reason why the qualifications regarding being ‘honest’ and ‘ameen’ and the likes of them had to be incorporated in Article 62 of the Constitution of our country through an amendment of the Constitution. In the parts of the world where democracy is entrenched for a long time the requirements of honesty, integrity, rectitude and probity in those who aspire for or hold representative public offices or other positions of high public authority 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 dishonour he/she, more often than not, resigns or withdraws from the scene on his/her own. Unfortunately 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. Lack of honesty, suppression of truth and conduct unbecoming of a gentleman have often been considered in the civilized world as valid grounds for high public officers or personalities to quit the office or scene voluntarily and some of such instances are mentioned below:

In Iceland Prime Minister Sigmundur David Gunnlaugsson resigned on April 05, 2016 when the Panama Papers, published in newspapers around the world, showed that the 41-year-old premier and his wife had investments placed in the British Virgin Islands, which included debt in Iceland’s three failed banks. The International Consortium of Investigative Journalists (ICIJ) had uncovered that he and his wife had an offshore account to manage an inheritance.
In Spain the acting Industry Minister Jose Manuel Soria resigned after his alleged links to offshore dealings emerged through the Panama Papers. After initially denying having links to tax havens he resigned on April 15, 2016.

In the United States of America President Richard M. Nixon had resigned from his office after it was established that he had misled the nation and the concerned authorities in the matter of involvement of his administration in the Watergate scandal and its subsequent cover-up. President Bill Clinton narrowly survived impeachment on the ground of lying in the matter of his sexual relationship with an intern in his office. Representative (R-GA) and leader of the Republican Revolution of 1994 resigned from the House of Representatives after admitting in 1998 to having had an affair with his intern while he was married to his second wife. In the night of July 18, 1969, shortly after leaving a party on Chappaquiddick Island, Senator Edward “Ted” Kennedy of Massachusetts drove an Oldsmobile off a wooden bridge into a tide-swept pond. Kennedy escaped the submerged car but his passenger, 28-year-old Mary Jo Kopechne, did not. The senator did not report the fatal car accident for 10 hours. The incident on Chappaquiddick Island helped to derail his presidential hopes and he pulled out of the race. Strom Thurmond, Senator (R-SC), a noted segregationist, fathered a child, Essie Mae Washington-Williams, with a 15-year-old African American in the year 1925 who was employed by the Thurmond family. The embarrassment caused by the scandal forced him to resign. Anthony Weiner (D-NY), a newly married U.S. Representative, admitted to sending sexually suggestive photographs of himself to several women through his Twitter account. He resigned from the Congress in June 2011. Elliot Spitzer, a Democratic governor of New York, had patronized an elite escort service run by Emperors Club VIP. The New York Times broke the story in March 2008 and the ensuing scandal led to Spitzer’s resignation as Governor within the next few days. John Edwards, Senator (D-NC) admitted to an extramarital affair with actor and film producer Rielle Hunter, which produced a child, seriously undercutting his 2008 presidential campaign. Bob Livingston, Representative (R-LA) called for resignation of Bill Clinton and when his own extramarital affairs were leaked his wife urged him to resign and urged Clinton to do likewise. Livingston announced that he would vacate his House seat in May 1999 and withdrew his candidacy for the office of Speaker.

In the United Kingdom Andrew Mitchell, Conservative government’s Chief Whip resigned after admitting swearing at the police at the gates of Downing Street, London. Chris Huhne, Energy Secretary, resigned in February 2012 and pleaded guilty to the charge of perverting the course of justice. He was clocked speeding on the road but to avoid a driving ban he falsely said that it was his wife who was driving. In the Members of Parliament expenses scandal many claimed that expenses were legal and within the rule but in the words of David Cameron they were not always up to “highest ethical standards”. Michael Martin, Speaker at the time, made efforts to cover up the scandal resulting in him being forced to resign in January 2009. He was the first Speaker in the last 300 years to be forced to resign. Ron Davies, Secretary of State for Wales, resigned in October 1998 after being robbed by a man he met at Clapham Common and then lying about it. Clapham Common is a known gay meeting place in London. Scotland’s First Minister Henry McLeish resigned in November 2001 when he was found to have sub-let a part of his constituency office in Glenrothes, in Fife, and had failed to register the income he received with the House of Commons authorities. David McLetchie CBE, Member of the Scottish Parliament and leader of the Scottish Conservative and Unionist Party, was forced to resign in the year 2005 after claiming the highest taxi expenses of any Member of the Scottish Parliament. Northern Ireland Minister Michael Mates resigned in the year 1993 over his links with fugitive tycoon Asil Nadir. Peter Mandelson, a Cabinet Minister, bought a home in Notting Hill in the year 1996 partly with an interest-free loan of £373,000 from Geoffrey Robinson, a cabinet colleague and millionaire whose business dealings were subject to an inquiry by Mandelson’s department. Mandelson contended that he had deliberately not taken part in any decisions relating to Robinson. However, he had not declared the loan in the Register of Members’ Interests and he resigned in December 1998. In January 2001 Mandelson resigned from the Government for a second time following accusations of using his position to influence a passport application. He had contacted Home Office Minister Mike O’Brien on behalf of Srichand Hinduja, an Indian businessman who was seeking British citizenship, and whose family firm was to become the main sponsor of the “Faith Zone” in the Millennium Dome. Jeffrey Howard Archer, Baron Archer of Weston-super-Mare’s perjury trial began on 30 May 2001, a month after one Monica Coghlan’s death in a road traffic accident. One Ted Francis claimed that Archer had asked him to provide a false alibi for the night Archer was alleged to have been with Monica Coghlan. Angela Peppiatt, Archer’s former personal assistant, also claimed Archer had fabricated an alibi in the 1987 trial. Archer resigned.

In Japan in June 2010 Yukio Hatoyama announced his resignation as the Prime Minister before a meeting of the Japanese Democratic Party. He cited breaking a campaign promise to close an American military base on the island of Okinawa as the main reason for the move. Toshikatsu Matsuoka, the agriculture minister, committed suicide in May 2003 after being accused of misusing political funds. Akira Amari, Economy Minister, resigned in the year 2016 after admitting receipt of money from a construction company executive which he claimed to have received as political donation. Trade Minister Obuchi and Justice Minister Matsushima resigned in October 2014 when Obuchi was accused of funneling campaign money to her sister and brother-in-law and to improperly subsidizing entertainment junkets for supporters whereas Matsushima stepped down for improperly distributing more than $100,000 worth of paper fans to constituents.

Premier Barry O’Farrell, Minister for Western Sydney, Australia resigned in April 2014 after a corruption inquiry obtained a handwritten note that contradicted his claims that he had not received a $3000 bottle of wine from the head of a company linked to the Obeid family. The Independent Commission Against Corruption heard that Mr. O’Farrell was sent the Penfolds Grange Hermitage by Nick Di Girolamo as a congratulatory gift following his March 2011 election victory.

In the Czech Republic Prime Minister Peter Necas resigned in June 2013 after prosecutors charged his chief of staff with corruption and abuse of power. The Prime Minister’s chief of staff, Jana Nagyova, was suspected of bribing the former MPs with offers of posts in state-owned firms. It is alleged that this was in exchange for them giving up their parliamentary seats. Ms. Nagyova – a close colleague of Mr. Necas for nearly a decade – was also suspected of illegally ordering military intelligence to spy on three people.

Although President Chen Shui-bian of Taiwan wanted to see a strong and independent Taiwan his family’s (and his own) lack of self control managed to undermine many of his positions. His son-in-law was caught money laundering and insider trading, his wife wired over $21 million to various banks in the world, and he was arrested after his resignation for embezzlement of funds and receiving bribes.

When persons in high public offices brazenly and unabashedly cling on to offices or power despite having been involved or implicated in serious scandals of corruption or immoral conduct impairing their high moral authority then the only way to oust or drive them out is to provide for a legal mechanism for their ouster and this is probably why in our country suitable provisions had been introduced in Article 62 of the Constitution and the relevant election laws through appropriate amendments. For a court or tribunal to get involved in such matters may not be the most desirable thing to do but as long as the Constitution and the law command or warrant such intervention there may not be any occasion for them to shy away from performance of such duty.

121. In the above mentioned case of Ishaq Khan Khakwani and others v. Mian Muhammad Nawaz Sharif and others (PLD 2015 SC 275) I had described the words “honest” and “ameen” appearing in Article 62(1)(f) of the Constitution as obscure and impracticable and had also talked about the nightmares of interpretation and application that they involved. However, as the Majlis-e-Shoora (Parliament) has so far not found any time to consider the said issue, therefore, the courts in the country are under an obligation not only to make some practical sense of those words by suitably interpreting them as clearly as is possible and practicable but also to apply them to real cases without losing their spirit and utility. An appropriate and safe approach towards interpretation of words used in the realm of morality which are not defined is to adopt a limiting and restrictive approach and this is what had been done by a Full Bench of the High Court of Balochistan in the case of Molvi Muhammad Sarwar and others v. Returning Officer PB-15, Musa Khail and others (2013 CLC 1583). Writing for the Full Bench in that case Qazi Faez Isa, CJ (now an Honourable Judge of this Court) had observed as follows:

“12. Section 12(2)(a) of the Representation of the People Act, 1976 (“the Act”) stipulates that every nomination form shall be accompanied by a declaration made on a solemn affirmation by the person seeking to contest elections, that, he/she, “fulfils the qualification specified in Article 62 and is not subject to any of the disqualifications specified in Article 63 or any other law”. Section 99(1)(d) of the Act requires a candidate to be of “good character” and one who does not violate Islamic Injunctions. Section 99(1)(e) requires a candidate to abstain “from major sins”. Section 99(1)(f) requires him to be “sagacious, righteous, non-profligate, honest and ameen”. Section 99(1)(d) of the Act is identical to Article 62(1)(d) of the Constitution, and section 99(1)(e) of the Act is identical to Article 62(1)(e) of the Constitution, whereas section 99(1)(f) of the Act is similar to Article 62(1)(f) of the Constitution. Article 62 of the Constitution commences by stating that, “a person shall not be qualified to be elected or chosen” as a Member of Parliament unless he complies with the provisions of Article 62. The framers of the Constitution wanted parliamentarians to possess high moral integrity and prescribed certain pre-conditions for them.

13. A person, who is of good character, does not violate Islamic Injunctions, abstains from major sins, is sagacious, righteous, non-profligate, and honest and ameen may be too high a qualification-bar to surmount. Moreover, sincere and practising Muslims in their humility, as slaves of God, may be reluctant to proclaim their sagacity, righteousness and honesty ever fearful that they fall short; whilst on the other hand lesser beings boldly swearing theirs. We are also cognizant of the fact that the language of Articles 62(1)(d), (e) and (f) of the Constitution (which is identical/similar to the language of sections 99(1)(d), (e) and (f) of the Act) is very wide and generalized, and may therefore be abused.

14. However, the present case is not one involving any subjective assessment of the stipulated criteria in Article 62 of the Constitution. The Hon’ble Supreme Court has decided that the petitioner was not qualified to contest the 2008 General Elections, but he did so, was elected, and became a Member of the Balochistan Assembly and a Minister in the Cabinet. The petitioner gained an advantage which he was not otherwise entitled to. And as a Member of the Assembly and a Cabinet Minister the petitioner diverted to his personal use funds from the public exchequer. The petitioner used moneys from the Provincial Consolidated Fund and such private use of public money was categorized as a ‘development scheme’. Needless to state money for the schooling of ones own children and family members cannot be dressed up as a ‘development scheme’ and pocketed.

15. In view of the above mentioned conduct of the petitioner he cannot be stated to be of good character or one who does not violate Islamic Injunctions or who is righteous or honest or ameen. Articles 62(1)(d), (e) and (f) of the Constitution and sections 99(1)(d), (e) and (f) of the Act forbid such a person to be elected or chosen as a Member of Parliament. The petitioner however audaciously stated on oath that he “fulfils the qualifications specified in Article 62 and is not subject to any of the disqualifications specified in Article 63 or any other law”. Simply put, the petitioner lied.

16. Lies fall into two different categories, those uttered to deceive and to gain an advantage, in the present case to be able to contest elections, and innocent lies without malice or any intended deception and where no benefit or gain accrues. Almighty Allah states in the Holy Qur’an “… break not the oaths after you have confirmed them” (Surah 16, An-Nahl, Verse 91). “And be not like her who undoes the thread which she has spun after it has become strong, by taking your oaths a means of deception among yourselves…” (Surah 16, An-Nahl, Verse 92). “And make not your oaths, a means of deception among yourselves, lest a foot may slip after being firmly planted, and you may have to taste the evil of having hindered from the Path of Allah and yours will be a great torment” (Surah 16, An-Nahl, Verse 94). “… Whosoever breaks his pledge, breaks only to his own harm, and whosoever fulfils what he has covenanted with Allah, He will bestow on him a great reward” (Surah 48, Al-Fath, Verse 10). “Allah will not punish you for what is unintentional in your oaths, but He will punish you for your deliberate oaths” [if false] (Surah 5, Al-Mai’dah, Verse 89). Whilst liars are castigated the doors of Heaven open to the truthful. “And those who keep their trusts and covenants… shall dwell in Paradise” (Surah 70, Al-Ma’arij, Verses 32-35). “Those who are faithfully true to their trusts and to their covenants … who shall inherit Paradise” (Surah 23, Al-Mu’minun, Verses 8-11). “Allah said: ‘This is a Day on which the truthful will profit from their truth” (Surah 5, Al-Maidah, Verse 119). “0 you who believe! Be afraid of Allah, and be with those who are true” (Surah 9, At-Taubah, Verse 119).

17. The cited provisions from the Constitution and the Act may however be misused for ulterior motives. For instance, a Muslim may not be saying his/her prayers or fasting and it be alleged that he/she is not qualified to contest elections. The Creator in His Infinite Wisdom and Mercy has created the distinction between those matters which do not adversely affect others and those that do; two separate obligations or huqooq, those that a person owes to others and those which God demands of man, respectively Huqooq-ul-lbad and Huqooq-ul-Allah. In the Huqooq-ul-lbad category are obligations owed to fellow men and women, such as not gaining an advantage on the basis of fraud. The Huqooq-ul-Allah category includes rituals, such as fasting, praying and performing Hajj. The non-observance of a ritual of the Faith is a matter between the created (abd or slave) and the Creator (Allah Taa’la or Almighty God). Almighty Allah tells us through the Holy Qur’an, “There is no compulsion in religion” (Surah 2, Al-Bakrah, Verse 256). The Messengers of Almighty Allah were given the task to simply convey the Message (Surah 3, Al-Imran, Verse 20 and Surah 5, Al-Mai’dah, Verse 99). Whilst the people may or may not abide by the prescriptions of the Faith they do not have the liberty to violate the rights of others. Since, Articles 62(1)(d), (e) and (f) of the Constitution and sections 99(1)(d), (e) and (f) of the Act refer to Islam, therefore, these may be interpreted in the light of Shariah. A Muslim may or may not be saying his/her prayers and may not be fasting in the month of Ramadan, but these are matters which, in the light of Shariah, cannot be investigated into either by the State or by any individual. Islam does not stipulate punishment in this world for non-observance of rituals; these are matters within the exclusive domain of Almighty Allah. Therefore, by analogy non-observance of rituals by a man or woman cannot be made a pretext to exclude him/her from Parliament. To hold otherwise would be in negation of Islam, and the Constitution. Article 277(1) of the Constitution requires that, “All existing laws shall be brought in conformity with the Injunctions of Islam.” Consequently, if Articles 62(1)(d), (e) and (f) of the Constitution and Sections 99 (1) (d), (e) and (f) of the Act are interpreted on the touchstone of Islamic Shariah there remains no doubt that personal matters of the Faith remain immune from examination or consequence in this world.

18. However, the provisions of the Constitution and the Act must be given full effect to when attending to the rights and obligations due to the people or Huqooq-ul-Ibad. Such an interpretation is in accordance with the language of the Constitution and the Act, and does not conflict with what Almighty Allah states in the Holy Qur’an nor the directions/teachings of Prophet Muhammad (peace and blessings be upon him). The petitioner gained entry into the Balochistan Assembly deceitfully; by violating the Act and the Constitution. Islam requires that a person abides by the laws of the place he/she lives. In addition, Islam does not permit encroachment upon the rights of others. By putting himself forward as a candidate, when the petitioner was not qualified, he violated the law, and the rights of those who had abided by the law. The rights of the voters too were violated as they were deceived into believing that he had the requisite educational qualifications. The petitioner also lied on oath, and gained an advantage by his lie, which is yet another contravention of Islam’s stipulated rights of the people or Huqooq-ul-Ibad. The petitioner also diverted public funds for his personal use, which neither the law nor Islam permits. The petitioner, therefore, to use the language of the Constitution, cannot be stated to be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament).

19. The Hon’ble Tribunal held that, “the petitioner, does not/did not fulfil the qualifications that are provided in Article 62 of the Constitution of Islamic Republic of Pakistan for a candidate to fulfil while going to contest the elections.” The Hon’ble Tribunal further held that, “Similarly, the allegation of payment of more than Rs. 2,281,000/- (Rupees Two Million Two Hundred Eighty One Thousand Only) to his two sons and other relatives is again adversely affects the bona fides, militates and offends the claim of respondent No.1 [petitioner herein] being Ameen, sagacious, truthful an non-profligate.” We are in complete agreement with the findings of the Hon’ble Tribunal and the judgment of the Hon’ble Tribunal does not suffer from any illegality.”

In an earlier case of Obaidullah v. Senator Mir Muhammad Ali Rind and 2 others (PLD 2012 Balochistan 1) the same Honourable Chief Justice of the High Court of Balochistan had written for a Division Bench as under:

“12. There is also another aspect to consider. In view of the convictions of Mr. Rind for corruption and embezzling/stealing from the public exchequer, which allegations he has accepted, the question arises whether, being a Muslim, he can be categorized to be “of good character” or someone who “is not commonly known as one who violates Islamic Injunctions” and thus attract the bar contained in Article 62(1)(d) of the Constitution. This provision has not been changed by the Eighteenth Amendment. The disqualification under this provision is not time-related, but perpetual. Quranic teachings promote an ethical framework for human behaviour. Almighty Allah describes believers as, “Those who are faithfully true to their Amanat and to their covenants” (Surah al-Mu’minun, 23:8). The Almighty directs, “…give full measure and full weight with equity, and defraud not people of their things and commit not iniquity in the earth, causing corruption.” (Surah Hud, 11.85). Theft or misappropriating or converting to ones own use property given in trust or amanat is haram and a hadd according to the Quran and Sunnah. Allah has condemned this action and decreed an appropriate punishment for it (Surah al-Maa’idah, 5:38). The Prophet (peace and blessings of Allah be upon him) cursed the thief because he is a corrupt element in society, and if he is left un-punished, his corruption will spread and infect the body of the ummah (Bukhari, al-Hudood, 6285). What indicates that this ruling is definitive is that fact that a Makhzoomi noblewoman stole at the time of the Prophet (peace and blessings of Allah be upon him), and, Usamah ibn Zayd wanted to intercede for her. The Prophet (peace and blessings of Allah be upon him) became angry and said, “Do you intercede concerning one of the hadd punishments set by Allah? Those who came before you were destroyed because if a rich man among them stole, they would let him off but if a lowly person stole, they would carry out the punishment on him. By Allah, if Fatimah bint Muhammad were to steal, I would cut of her hand,” (Bukhaari, Ahadith al-Anbiya, 3216). 

13. In the Nomination Form submitted by Mr. Rind he suppressed the fact of his two convictions. The suppression was not something Mr.Rind could have forgotten, overlooked or was an insignificant matter. Thus his declaration on oath, that, “I fulfil the qualifications specified in Article 62, of the Constitution and I am not subject to any of the disqualifications specified in Article 63 of the Constitution or any other law for the time being in force for being elected as a member of the Senate” was clearly false. The question arises whether in making such a blatantly false declaration he “violates Islamic Injunctions” to attract Article 62(1)(d) of the Constitution. 

14. Almighty Allah states in the Holy Quran, “… break not the oaths after you have confirmed them” (Surah An-Nahal, 16:91). “And be not like her who undoes the thread which she has spun after it has become strong, by taking your oaths a means of deception among yourselves, lest a nation may be more numerous than another nation. Allah only tests you by this” (Surah An-Nahal, 16:92). “And make not your oaths, a means of deception among yourselves, lest a foot may slip after being firmly planted, and you may have to taste the evil of having hindered (men) from the Path of Allah and yours will be a great torment” (Sarah An-Nahal, 16:94). “… Whosoever breaks his pledge, breaks only to his own harm and whosoever fulfils what he has covenanted with Allah, He will bestow on him a great reward” (Surah Al-Fath, 48:10). “Allah will not punish you for what is unintentional in your oaths, but he will punish you for your deliberate oaths [if false]” (Surah Al-Maidah, 5:89). “And those who keep their trusts and covenants …. shall dwell in Paradise” (Surah Al-Ma’arij, 70:32). “Those who are faithfully true to their trusts and to their covenants … who shall inherit Paradise” (Surah Al-Mu’minun, 23:8), “Allah said: ‘This is a Day on which the truthful will profit from their truth’ “(Surah Al-Maidah, 5:119). “0 you who believe! Be afraid of Allah, and be with those who are true” (Surah At-Taubah, 9:119). 

15. Lies fall into two distinct categories. Those uttered to deceive and to gain an advantage, in the present case to be able to contest elections, and innocent lies without malice or any intended deception. In this case Mr. Rind in reply to the question in the Nomination Form, “Have you ever been indicted in criminal proceedings or convicted for the violation of any law (excluding minor traffic violations)?” responded by stating “No” which was an admittedly false statement and made on “Declaration and Oath. Legal and Constitutional consequences follow from making such a false declaration on oath and are clearly not permissible in Islam and thus Mr. Rind would run foul of Article 62(1)(d) as well. 

16. The Legislature in its wisdom has incorporated Article 62(1)(d) and it is therefore the duty of the courts to interpret and apply it. We are however cognizant that the same may be misused for ulterior motives, for instance a Muslim may not be saying his prayers or fasting and it be alleged that he stands disqualified under Article 62(1)(d). However, the Creator in His Infinite Wisdom and Mercy has created a distinction between those disobediences which do not adversely affect others and those that do, and thus haqooq-ul-Allah and haqooq ul-abad. The observances of ritual finds favour with our Lord and may also determine whether an individual gains entry into Paradise, however, “There is no compulsion in religion” (Surah al-Baqarah, 2:256). Even the Messengers of Allah were given the task of simply conveying the message (Surah al-Imran, 3:20 and Surah al-Mai’dah, 5:99) and it was left for the people to believe or not or abide by the prescriptions of the Faith or not, but the people do not have the liberty to resort to crimes, including murder, theft, misappropriation of entrusted property et cetera, which adversely affect the rights of others. It is also reasonable to presume that the Legislature only wanted to restrict entry of criminals (thieves, embezzlers et cetera) into the portals of Parliament and not those who were not observing the rituals of their Faith; the probability of the former category would not detract from them being good law makers, ministers, chief ministers or even Prime Minister, but the nation cannot be entrusted into the hands of the latter category. Unfortunately, Mr. Rind by his criminal conduct has himself ensured that the doors of Parliament are closed to him. 

17. In view of the abovementioned two convictions for corruption, embezzlement and misappropriation of public property and for knowingly making a false declaration on oath Mr. Rind cannot be stated to be “of good character” or someone who “is not commonly known as one who violates Islamic Injunctions” in terms of Article 62(1)(d). Therefore, on this count too he does not qualify to be elected, chosen or continue as member of Parliament of the Islamic Republic of Pakistan. 

18. Individuals must take responsibility for their actions. The court has been empowered to ensure implementation of the Constitution and the weight of its responsibility if individuals are unable to do so themselves. Mr. Rind manipulated his position for personal benefit and committed crimes. He did not stay away from public office, as the law required, but proceeded to file a false Nomination Form to again acquire it. Ethically, morally and constitutionally he betrayed himself and the people of Pakistan. Consequently this court is left with no option but to declare that Mr. Rind cannot hold the public office of Senator under Article 62(1)(d) and (g) and Article 63(1)(h) of the Constitution of Pakistan and the writ of quo warranto is issued against him as he has usurped, intruded into and is unlawfully holding the public office of Senator. For the foregoing reasons Mr. Rind is also permanently disqualified to be elected or chosen as, and forever being a member of Parliament and respondents Nos. 2 and 3 are directed to ensure the same.”

The approach adopted in the above mentioned two cases towards interpretation of the relevant provisions of Article 62 of the Constitution restricting their applicability to public conduct of a person affecting others rather than his private conduct not affecting generality of the populace has been found by me to be quite useful and the same is, therefore, approved as it renders the said provisions more capable of being applied and enforced by a court or tribunal with some degree of clarity and certainty. In the present case respondent No. 1 has been in public life for the last about thirty-six years, he has been holding the highest elected public offices in the country for most of the said period and the allegations leveled against him pertain to corruption, corrupt practices and money laundering, etc. Such allegations leveled against the said respondent, thus, surely attract the provisions of Article 62(1)(f) of the Constitution even when the above mentioned restrictive approach of interpretation is adopted.

For earlier and later sections of Judge Khosa’s Judgment, click here for the full text of judgement.