This week the Supreme Court will continue its hearings on three petitions for the disqualification of Nawaz Sharif to be a member of the National Assembly on the ground that he does not meet the requirement of Article 62 of the constitution that only persons who are honest and ameen are eligible for election to parliament.

The case of the petitioners rests on an allegedly false statement by the prime minister in the National Assembly on August 29 saying that the government had not asked the army chief to mediate or become a guarantor in ending the political standoff between the government and the two protesting parties, the PTI and the PAT.

Whether Nawaz loses his job as a result or not, the case is important because it is expected to clarify the procedure for the implementation of Article 62 and its counterpart, Article 63, which deal respectively with qualifications and disqualifications for membership of parliament. These two articles have so far been applied very sparingly and selectively, and if they were actually enforced, most of our honourable lawmakers would not be sitting in our legislatures.

Last Wednesday Justice Jawwad Khawaja, who is heading the three-member bench hearing the case, himself pointed to the likely far-reaching consequences of the case and stressed the need to “tread very cautiously.” At the same time, he also remarked that the court would follow the constitution and was not concerned if the prime minister was disqualified or 50 MNAs were de-seated following the verdict.

Articles 62 and 63 were adopted in their present form through the 18th Amendment, but most of their provisions can be traced to amendments made by two coup-makers, Ziaul Haq and Musharraf. While Zia added conditions whose ostensible object was to ensure that our lawmakers are “good Muslims”, the avowed purpose of the changes made by Musharraf was to rid our assemblies of corrupt politicians.

Despite these changes in the constitution, we all know that our lawmakers today are neither better Muslims than before, nor are they less likely to be corrupt. The reasons are not far to seek.

First, the main purpose of these amendments was not to ensure that those who sit in our legislatures have “good character” and that they practise Islam, as Zia claimed, or to cleanse the august houses of tax cheats and looters of public money, as Musharraf professed, but to give the military dictators the means to pressure or disqualify those considered a threat to their rule. Neither they nor later ‘democratically elected’ governments of the country took any steps to enforce the disqualification provisions of the constitution.

Second, while the constitution was amended to lay down additional conditions of eligibility for those seeking election to the legislatures, there is no clarity with regard to the procedure for implementing these provisions. The utter confusion that reigns over this question is clear from the following four questions on which the Supreme Court sought the assistance of the attorney general at last Wednesday’s hearing. Which forum is competent to hear disqualification case against a parliamentarian? If it is decided that a court can hear the disqualification case against the member, which court should hear it? What procedure should the court adopt to unseat the member? And what will be the standard of proof to justify the finding that a member stands disqualified?

Third, there is a tacit understanding between most of the political parties that Articles 62 and 63 should not be implemented. Ideally, they would like that most of the conditions of eligibility laid down in these articles should be scrapped altogether. In fact this was the preferred option discussed by the parliamentary committee which authored the 18th Amendment. But they shrank from this course because they realised that a trashing of the qualification clauses would be very unpopular with the general public. So they did the next best thing: they defanged Articles 62 and 63 to the point of making them virtually innocuous.

For instance, the clause under which Nawaz’s disqualification is being sought has been made quite toothless under the 18th Amendment. Earlier, any person who was not considered to be honest and ameen was ineligible for sitting in parliament. Now, only a person who has been declared by a court of law not to be honest and ameen is disqualified. If parliament had simultaneously passed a law to lay down a procedure for such a declaration, the amendment might still have made some sense. Without such a law, it is a virtual non-starter, as it was no doubt meant to be.

The changes made by the 18th Amendment in clause (2) of Article 63, which lays down a procedure for the unseating of those who do not possess the qualifications for election to parliament, are even more guileful. The characteristic of a good law is that it should possess clarity and precision, that it should be easy to implement and that there should be foreseeable legal consequences for non-compliance. The new clause (2) is the exact opposite. It is open to different interpretations, its implementation is left to subjective political considerations and its legal consequences are therefore unpredictable. Part of this, such as the way it flouts simple rules of grammar, is no doubt due to sheer incompetence. In that respect, it resembles much of our legislation in recent years.

But more perturbing is the fact that the clear intent of the amendment to Article 63 (2) was to protect those who are not qualified to be members of our legislatures from being unseated. Before the 18th Amendment, the speaker of the National Assembly and the chairman of the Senate were bound to refer all questions about the qualification of a member of the house to the Election Commission. Now, the speaker and the chairman can unilaterally and subjectively withhold making a reference to the Election Commission, and since they are both appointees of the leader of the majority party, they exercise this power to favour their party in particular and the country’s ruling class in general.

Three examples illustrate the way the speakers have used or abused this power. First, in 2012 the then speaker refused to refer the question of Yusuf Raza Gilani’s disqualification to the Election Commission after he was found guilty of contempt of court. The speaker’s decision was overruled by the Supreme Court and Gilani was sent packing. Second, last September the present Speaker rejected a request to refer the question of Nawaz’s disqualification to the Election Commission. This matter is now being heard by the Supreme Court. Third, in another case, the speaker has ruled that Article 63 (2) can be invoked only when a duly elected member of parliament becomes disqualified after the election. If this interpretation is accepted, a clause which lays out a procedure to keep the black sheep out of parliament would be converted into a shield to keep the black sheep in.

The surreptitious manner in which the authors of the 18th Amendment changed Article 63 (2) in an attempt to protect those who do not possess the qualifications for being elected from being unseated was a clear breach of the trust reposed in our ‘elected representatives” by their voters. Whether Nawaz is honest and ameen is something the Supreme Court will now decide. But we do not need a judicial decision to say that those who have been using different tricks to obstruct the unseating of persons who do not qualify to be members of the legislatures are neither honest nor ameen.

It is to be hoped that the Supreme Court’s judgement in the Nawaz case will provide the authoritative answers to the four questions on the implementation of Articles 62 and 63 which were raised by the presiding judge last week. That would considerably facilitate the task of cleansing our legislatures of the parasites that presently dominate the august chambers, which is an essential element of the electoral reform the people of Pakistan have been clamouring for.

The writer is a former member of the Pakistan Foreign Service.