700-election check
-Illustration by Mahjabeen Mankani/Dawn.com

As we saw the election candidate’s scrutiny process unfold in Pakistan, election officers have gone through everything from a nominee’s Islamic knowledge to their other personal affairs. Many have advocated for the need to introduce a secular approach to political affairs in order to avoid these tragically comical fiascos. This debate has gone back and forth, often based on personal principles, but there’s an underlying pragmatic and democratic issue related to this pre-election process that has less to do with the candidate and more to do with the voters at large. While there is a need to weed out candidates that have committed violations of ethics in any country, the types of pre-election inquiries occurring in Pakistan violate the right of the voter to independently select a candidate based on whatever matters to that voter.

While nations take distinctive paths toward development, one commonality many share is the faith-based underpinnings of their original governance. This is especially true for the US, despite the commonly-held belief by some that America has always been secular. With regard to candidate qualification, each state (or provincial) constitution was allowed to set out different rules for state-level elections. Ten states historically set out such qualifications: for example, in New Hampshire, North Carolina and South Carolina only Protestant Christians could hold elected positions, disqualifying atheists, Catholics, and Muslims alike.

While states could set out their own rules for provincial elected positions, the US national constitution has always forbidden any religious test for qualification to run for the federal Senate or House of Representatives. The US constitution sets a very easy threshold for citizens that want to run for federal elected office, they must merely meet age and citizenship requirements.

This was because the founders wished to avoid excessive prerequisites and believed that the age and citizenship were narrow enough qualifications that were “absolutely necessary for the safety of the society,” as stated by the Committee of Elections in 1807. Wilson Carey Nicholas, US senator from 1779-1805, stated that “it has ever been considered a great security to liberty, that very few should be excluded from the right of being chosen to the legislature.”

Eventually, states have done away with religious qualifications, likely because of several Supreme Court cases that prohibited states from having religious qualifications for elected office. The Supreme Court ruled that some of these qualifications were unconstitutional because they violated the candidate’s right to religious freedom.

However, states also eventually discovered that the founders of the US prohibited such requirements at the federal level for a very pragmatic and democratic reason. Their motivations had less to do with the religious right of the candidate and more to do with the power of the people to select their own representatives. In prohibiting religious tests, the founders focused on the ultimate right of the voters to decide who would represent them, rather than the right of potential candidates to be part of any religion or no religion at all.

James Madison stated in his famous Federalist Papers that “no qualification of wealth, of birth, of religious faith, or of civil profession is permitted to fetter the judgment or disappoint the inclination of the people.” Robert Livingston, another founding father and a famous lawyer, echoed this sentiment of voter empowerment when he stated that “[t]he people are the best judges who ought to represent them. To dictate and control them, to tell them whom they shall not elect, is to abridge their natural rights.” In the alternative, if this right for the public is trampled upon through pre-requisite tests for hopeful candidates, Madison argued that “a republic may be converted into an aristocracy or oligarchy as well by limiting the number capable of being elected as the number authorised to elect.”

For Pakistan, a republic could be converted into a theocracy (as it may already have been through Islamist constitutional amendments passed by Ziaul Haq) if returning officers can conduct religious witch trials before clearing candidates for an election. This is not only an intrusion on the right to freedom of religion guaranteed by Article 20 of the Pakistani constitution, but it deprives the voter the right to choose their candidate based on their own moral and political compass. The pre-selection process allows overly zealous election officers, who are themselves un-elected, to override and subvert the right of the public to make its own choices.

Perhaps for the foregoing reasons, the Election Commission along with the Lahore High Court finally prohibited election officers from asking “irrelevant questions.” Lawyers representing candidates whose nomination papers were rejected by officials argued that the scrutiny of nominees under Article 62 and 63 was untenable as it required analysis based on the candidate’s “good character,” “sagacious, righteous, non-profligate, honest and ameen,” possessing “adequate knowledge of the teachings…prescribed by Islam.”

When hearing arguments on the case, Justice Shah rightly questioned the respondent regarding ‘who will decide that whose character is good, whose Islamic believes are proper and who is commenting against the ideology of Pakistan?’ He went onto order all election officers: to immediately refrain from asking random intrusive and inquisitive questions that have no nexus with the information supplied in the nomination paper,” so as to “achieve fair and free elections and not to carry out a witch-hunt and demean the politicians of our country

Much like Madison’s concern with the legitimacy of the election process resting on the voter’s free choice, Justice Shah seemed concerned about a process which illegitimately disqualifies citizens from running for office, depriving the citizenry at large the chance to not elect them on their own. A democratic election is predicated on this simple notion, and subverting the free will of voters calls into question the whole process, and often unfairly mars the legitimacy all those who were elected.

None of this is to say that a democracy should allow criminals and immoral individuals to represent their public in parliament or Congress. Any criminal acts by a hopeful candidate should be prosecuted through a public court hearing, wherein the people can be notified of the individuals’ background, be given the choice not to elect him or her. The same should go for immoral acts or professional ethics violations, whose details are frequently brought before the public through the media. Alternatively, if a Parliamentarian has committed an ethics violation or illegal act, they can be publically disqualified by the Speaker of Parliament working alongside the ECP, and the voters will be put on public notice that such an individual is not worthy of their vote.

The candidates’ religious tests could be overturned by Pakistan’s Supreme Court, perhaps based on the potential violations of the freedom of suffrage or religion sometime in the nation’s future. Further, one should consider the following: the state or provincial constitutions in Tennessee, Maryland, and Texas all still require elected officials to believe in God, yet these states have not enforced these provisions in several decades. The same could happen in Pakistan if social evolution occurs through public discussion on the pragmatic need for restraining the role of religion in the state’s machinery in order to limit its debilitating effects on the democratic process.

 


The writer holds a Juris Doctorate in the US and is a researcher on comparative law and international law issues.


The views expressed by this blogger and in the following reader comments do not necessarily reflect the views and policies of the Dawn Media Group

More From This Section

Govt moves PPO in Senate amid protests

Minister Zahid Hamid tabled the bill which was then referred to the Senate Standing Committee on Law and Justice.

‘Pakistan must break alleged links with Afghan insurgents’

Opposition senators call for ending ‘duplicity’ in and a serious rethink of the foreign policy formulation process.

Bombers’ trail leads to arrests from guava farm in south Punjab

Officials said they are comparing the bombers’ modus operandi with that of TTP and UBA in Islamabad Sabzi Mandi blast.

Federal cabinet meeting approves import of electricity, LNG

The meeting presided by premier Sharif also discussed the future of talks between the government and Taliban.


Comments are closed.

Comments (29)

amin sardar
April 15, 2013 11:25 am
Dr Sahib is ignorant about the nexus on corruption by the state pillars.
Khalid
April 15, 2013 11:36 am
You make a lot of sense. But that is not the issue. The biggest issue I see is that the uneducated people of Pakistan will elect insincere, corrupt, two-faced and cunning politicians, who have developed an expertise in fooling most of the people most of the time by covering everything they do and say with a nice coating of religion. Until we educate our masses, these so called politicians will continue to win and the poor people of Pakistan will continue to lose.
Satyameva Jayate
April 15, 2013 11:42 am
"The same could happen in Pakistan if social evolution occurs through public discussion on the pragmatic need for restraining the role of religion in the state’s machinery in order to limit its debilitating effects on the democratic process." - People of Pakistan wanted and still want an Islamic Republic. For them being a Islamic Republic is much more important than being a Democracy. If that is what they want that is what they should get. The problems arise when they project to be what they are not: Secular.
Vaibhav from Mumbai
April 15, 2013 12:43 pm
Thank God in India we dont have a test on Hinduism for people standing in elections. The entire idea of knowledge about religion as a qualification for standing in elections seems ridiculous and can only happen in Pakistan. Does that mean that an atheist cannot be a good politician???
Agha Ata (USA)
April 15, 2013 1:26 pm
The reality is that most candidates didn’t know the answers to such questions. If that is the standard of their education, I think it is necessary to ask such questions. Tell me something, all these candidates are educated, right? If their schools and colleges didn’t give them this simple knowledge then I am sorry about those schools as well. If I were the candidate, I would answer those questions even before the interviewing officer would fully utter the sentence, and then after a few questions I will tell him., “Look here Sir, I am not a school student. Ask me something that is needed in my job. Don’t ask me what come after be and te in Urdu alphabets.” .
Abdul Rauf Raja
April 15, 2013 1:36 pm
In my view of an Islamic Republic, people would have horns on their heads. What is your view? Is it going to be like that of your neighbor's? Or is it, that the view of the person with most sheep counts?
Romulus
April 15, 2013 1:51 pm
@khalid, The highly educated Americans do the same. Education has little to do with common sense.
Pervaiz Aziz
April 15, 2013 2:49 pm
What the doctor has written is of academic interest and far away from realities in Pakistan. Secondly we are an Islamic state that is supposed to have a constitution based on Islamic principles. We are not a secular state and we do not have to be one. Is it that the moment we declare ourselves as a secular state our ethnic problems would disappear. Our constitution requires the members of assemblies, other than minorities, to be muslims who understand Islam not those who were born as muslims and know nothing about their religion.
Youie
April 15, 2013 6:56 pm
Pakistan's only solution is complete Secularism. Anything else will be a disaster.
Beg
April 15, 2013 9:45 pm
Mixing apples and oranges is what is done in this column. The so called scrutiny done by ROs was a farce as it was proved later at the tribunal level and it was a successful trick done by ROs (judiciary )in collusion with the political parties in such dexterous manner that on one hand created doubts about articles 62 and 63, on the other hand let the corrupt, criminal, liar politicians slipped through easily through the scrutiny process, who cares about Pakistan and pakistani people that they want clean candidates to run for election. This is the injustice done to pakistani and I am seeing break up of Pakistan very soon if the same corrupt politicians are allowed as candidates. To those who hate Islamic identity of Pakistan and its people, hats off to cunningly play the trick but still they have to change the world Islamic from constitution as the first step but I wonder would they be able to change their names and people of Pakistan names as well because in any case the people names are also Islamic. Another argument they make that Islam and how much a person know and practice Islam is between him/her and Allah but they don't know Islam because all five pillars of Islam are designed in such a way by Allah that the people who practice them must make it public (means not personal between Allah and person )take kalima, if one wants to embrace Islam, he has to recite kalima in front of public not alone. If he is a born muslim, his parents say aazan in his ears in front of relatives (mother, father, grand parents, uncles, aunts or friends )are usually present when aazan is said in the ears of newborn, then comes aqiqa (a public event )so nothing is personal. Then comes namaz which is farz and a public event since one has to go to mosque to pray with jamaat (quran says aqeemos salat which means pray together in public in mosques )so namaz is not personal between only Allah and person rather quran and all sects in Islam make it a public event. Similarly zakat is given publicly with declaration either to the Islamic government or to the person you are giving (unlike sadaqa which should be hidden commonly but not always )Ramadan should be celebrated by government by closing food shops during day until rooza is opened and public eating is strongly discouraged even punished and lastly haj is an obvious public event and people know who is going for hajj.Hence all five pillars of Islam are public events although they are also personal as well, therefore it is 100 pc right to ask about these in the constitution to make sure that knowledgeable and practicing Muslims should get to the parliament where they have to legislate laws under the umbrella of quran and sunnah so it is logical that they must have minimal knowledge of pillars of Islam and public opinion that they practice Islam but unfortunately we are only muslims by name or we are hypocrites and you know hypocrites will be deeper in hell than nonbelievers so it is our choice where we want to abide after death which is the reality and is going to hit everybody soon.
Beg
April 15, 2013 9:57 pm
Read quran and Islam then you will understand things. Islam is not a religion, it is the way of life (individual, collective, community and state )unlike other religions which are merely collection of rituals, Islam encompasses every aspect of human life and gives detailed laws in all spheres for all periods of time
YMMIR
April 15, 2013 10:01 pm
author appears to be confused--why was pakistan created/needto merge \with india americans are religous people/honest/hardworking/moral useless to comopare as pakistanis belive in shortcuts and will not pay their share of taxes/and run to IMF AT THE WINK OF AN EYE
Beg
April 15, 2013 10:03 pm
True democracy is the choice of more than 50 pc people so why crying when 95 pc of pakistani people want Islam as the religion of the state, so let it be why impose something other than Islam. Isn't it undemocratic
dks
April 16, 2013 3:10 am
good luck with your Pakistani Islam (the way of life (individual, collective, community and state )).
dks
April 16, 2013 3:14 am
I am touched by your dedication to Islam... You are ready to serve god ...get in touch with LeT, JeM, Taliban etc they will show you that true path to god....
dks
April 16, 2013 3:16 am
who told you Americans are HIGHLY EDUCATED ???
Immad
April 16, 2013 5:05 am
A sweeper for a government job has to meet age, citizenship (domicile) and education criteria, but for policy makers we have just age and citizenship!!! ECP (Election Commission of Pakistan) cleared a lot of seasoned politicians against whom there were cases in the courts, who have huge assets outside Pakistan. The most important thing for any process to produce results is to have good input. Did ECP do that?
Romulus
April 16, 2013 11:15 am
The same person who told you they aren't.
muhammad
April 16, 2013 11:46 am
We have to decide once and for all that what type of leaders we want either we need criminals in our assemblies or clean people who can run this country in an honorable way. Corruptions should not be tolerated under the disguise of democracy
Usman
April 16, 2013 1:11 pm
good argument. I strongly agrees with you.
Zaffar
April 16, 2013 1:19 pm
Gosh! After reading all that I can see why millions of psychologists are seriously required in Pakistan.
Shafiq Khan
April 16, 2013 3:59 pm
Dear sir, Who should decide on the question you are posing? The Court or any other agency? Your opinion or my opinion do not equate the law of the land. This is what the article is advocating. A court of Law constituted under the constitution of the country is the only agency that decides on the law of the land. Those who make vile comments against the highest court in the land are not abiding by the decisions of the Court have some ulterior motive, beware of them. The constitution (thought rigged by a dictator aided and abetted by the Mullahs)is the only protection against wrong doers. The Supreme Court of the country is the only agency to declare on it. Shafiq
Shafiq Khan
April 16, 2013 4:02 pm
Whose legal responsibility is it? Why not look at the constitution and find out before implying fault. Shafiq
Adnan
April 16, 2013 4:11 pm
Your arguments are not entirely convincing. Firstly, I can see your concern regarding the value of religious questions to governance, but you seem to forget that Pakistan, unlike the US, is constitutionally a religious country. (The merits of this is a separate discussion). Secondly, I'm pretty sure the US also doesn't allow criminals, tax evaders and forgerers to be elected as public reps at least until they have paid their dues with time in jail! Lets not hide these under the garb of 'public will'. The ROs their bit to clear up this country's mess as each of us should (eventually to little avail). They deserve some respect for standing up.
Ram Mohan roy
April 16, 2013 5:55 pm
Beg writes " Hypocrites will be deeper in hell than non- Muslims " Really! Who told you that ?
expaki
April 16, 2013 6:09 pm
Bag Sahib, faith is your personal matter, do not mix it with realities of the world. especially when no day goes without blast in Pakistan by Religious extremist.
expaki
April 16, 2013 6:13 pm
Bag Sahib !! I am sure you have not read this news in DAWN. http://dawn.com/2013/04/16/blast-at-anp-rally-kills-two-injures-ten-in-peshawar/
beg
April 16, 2013 8:42 pm
zafar will understand everything as soon as the death strikes you but then the chance of understanding would be lost and you know there is no second chance so better see a psycologist and psyciatrist now before the life is over as the death is fast approaching.
Bob
April 17, 2013 4:14 am
Oh my Allah!!! How complicated have you made these people of Pakistan? Pkistan needs to develop education system for all, health care, industries for jobs and growth. Not Islamic theocracy!!! Oh my Allah why doesnt Beg understand that thousands of people do not even have enough to eat? Can they really pray? How many pople cannot afford education for ther children? Will this child care about Islam or any other religon for that matter? The common man does not want a State religon. They want good governance. and a job. They do not want more Masjids. They want more food. Religon is a persoan matter and you are the best judge. Religon teaches us equality for all,justice, fairness, good nieghbours, insaaniyat. But let it be between my Allah and me. I want the likes of Beg out of it . I want Pakistan to become a secular country so that the youngsters have some hope in survining in this world!!!
Explore: Indian elections 2014
Explore: Indian elections 2014
How much do you know about Indian Elections?
How much do you know about Indian Elections?
Bloggers
Tweets