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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