Short-circuit solutions

Legal eye
Within the buffoonery of the electoral scrutiny process is implicit the enthusiasm of controlled-democracy proponents to cleanse political stables through abuse of the legal process. That public officials should be subject to a higher level of scrutiny is uncontestable. Candidates who offer themselves as trustees to act in the name of people ought to be law-abiding citizens.
The right of the ordinary citizen to make informed choices at the polls highlights the need to publicly disclose record of candidates’ assets and liabilities, payment of taxes, educational qualifications etc. But let us understand that the electoral scrutiny process isn’t meant to fix all ills of our democracy, our polity and our justice system.
Part of the explanation for our chequered political history is our predominant reliance on agents of change external to the system. We have looked to army chiefs to ‘sort out’ the politicians through use of the stick to make the country safe for democracy. The past few years we have been looking to the judiciary to emerge as our saviour, stamp out the crooked politician and deliver a sterilised representative system of governance. And now it is the returning officers who are supposed to separate the grain from the chaff through summary scrutiny of nomination forms, send packing all vice-ridden politicos, and manufacture a political elite that will make this a land of milk and honey.
But let’s focus on the good. It is undeniable that the scrutiny madness is constructive in ways. The enhanced disclosure mandated by the Election Commission, the emphasis of a vibrant media to make disclosures publicly available and the zeal of rival candidates to hunt for gaps in order to knock opponents out of the election race through legal process is helping change behaviours. We live in a society where wrongful acts of the powerful generally produce no direct consequences for them. A realisation is now setting in that in case you wish

to vie for public office you must order your life and your affairs in a manner that is defensible before the public as well as in the eyes of the law.
It is clear now that when the graduation requirement was imposed (however ill-advised) the reflex of non-complying candidates was to indulge in fraud as opposed to sitting for BA exams. This was a consequence of the gaping hole between law and its application. As an activist judiciary has decreased this gap (in relation to politicians at least) and illegal acts have come back to haunt, the response of our political class to requirements of the law is also changing.
Notwithstanding occasional excesses, we have also seen excellent analytical and investigative journalism, such as Umar Cheema’s ‘Representation without Taxation’. The growing enthusiasm for public and legal accountability will now be hard to quell. The more information will come into the public domain, the more scrutiny it will attract and the more people will be asked to account for their conduct in public and legal forums. The move toward greater transparency and accountability in public life is good news for Pakistan and will not remain limited to the political domain. We are indeed moving in a direction that will spare no holy cows – the khakis, the judges and the journos, et al.
The second constructive effect of the scrutiny madness is that the Article 62/63 debate is coming out in the open. There is a liberal-conservative divide in Pakistan, like all other countries. The liberal approach here to dealing with the conservatives has been to ignore them altogether and pretend that the two worlds – the liberal and the conservative – will continue to coexist peacefully so long as we keep mum about the relationship between religion and state. The instances of returning officers quizzing candidates over their faith, morality and piety have put this fantasy to rest.
We will need to talk about the elephant in the room. By ignoring the maulvi, the liberal has ceded to him valuable public space as well as the right to question the role of religion in relation to collective rights of society. And with the ability and willingness of extreme fringes of the conservative curve to inflict physical violence to enforce its viewpoint, reclaiming the space even to make a liberal argument is a challenge. But what the intolerance and ignorance at display in demands for moral scrutiny of candidates could do is slap the liberal out of apathy. It is dangerous even to argue that the state shouldn’t be in the business of enforcing religion, but these are desperate times.
You can speak now or forever hold your peace in allowing self-appointed guardians of faith and morality dictating to you how you ought to live your life and raise your kids. Religion and faith for many is about discovering the truth about this universe. Like any discovery process, it involves inquiry, contemplation, doubt, analysis and belief. Reasonable people will come out with a different meaning of the truth even when they start with the same basic sources. Allowing the state to enforce religion is offensive to many inalienable rights of the individual, including the right to profess and practice religion.
Who will decide what the undisputed core of religion is that should be enforced? As Islam is a complete code of life, wouldn’t an Islamic state need to adopt a maximalist view of religion? Shall we enforce the literal textual meaning of scriptures or the underlying values and principles that the text is meant to uphold? Who will make authoritative rulings when differences arise over competing values or how competing rights are to be balanced? The constitution has left it to the courts to given final judgements about interpretation of legal texts? Who will be the final arbiter in case of differences over religious texts?
It is often debated whether law has the moral authority it claims and the resounding answer from jurists has been that it doesn’t. You might not agree with a law or its interpretation, but you abide by it or face the consequences of disobedience. On the contrary, religion is all about moral authority. How would you react when your belief about how you should order your relationship with God is different from how the state believes you should? Once you concede that one group of citizens has a right to define religion for you and enforce it through the instrumentality of the state, you are in fact ceding your right to profess and practice your religion freely.
Human progress is contingent upon our cognitive faculties and their use. When Muslim societies succeeded they were more knowledgeable and learned in comparison with their contemporaries. The world learnt English because it became the language of power. It is now interested in learning Chinese because China is rising. It will not become interested in Arabic because we write down in our constitution that we will whip anyone who refuses to learn Arabic.
The electoral scrutiny process has projected the consequences of our priorities. We don’t reform our justice system at the grass roots but are aghast at the questions our judges asked when acting as ROs. We don’t invest in progressive education for all but wonder why so many here believe that if we stop thinking and grow beards we’ll be all right. We are not a mess because a tiny minority in this country secretly consumes alcohol. We are a mess because we are not in the business of producing ideas and or able to compete with those producing ideas. We are a mess because we are not providing our youth with the means to undertake upward social mobility and make something out of their lives in this world. And the blame for that rests with our liberal elite and not the moral brigade.
The writer is a lawyer based in Islamabad. Email: sattar@post.harvard.edu