Presumption of guilt

The scrutiny of nomination papers by the returning officers under Articles 62 and 63 of the Constitution has reversed the age-old conception of justice — the presumption of innocence. What this concept really means is that every individual is innocent until proven guilty. This concept is ingrained in all civil liberties and fundamental rights. It is a part of our constitutional tradition as it has evolved through Western, Islamic and traditional sources of jurisprudence.

The returning officers acted as kangaroo courts, delivering a judgment of “guilty” after asking a few questions and taking the allegations filed by political rivals as evidence. This was the worst mockery of justice ever heard or seen. The silly, bogus questions before the camera, with live breaking news on electronic media, reduced the whole process to a sham. The shallowness of the questioners was more obvious than the presupposed guilt of the nominated candidates. The election tribunals hearing appeals have equally failed to provide justice. Nor have our higher courts, except in some cases, implemented the presumption of innocence conception.

True, in every democracy, the expectation is that those contesting elections for legislatures or other elected public offices would be honest, ethical and committed to public service. It is a universal law that any convict under national law cannot contest elections. Here, in every case of nomination papers being rejected, the issue was not that an individual was a convict but rather it was the adverse public perceptions of him floating in the media and charges of corruption or other offences filed in the courts.

No democracy has ever disqualified candidates for public offices on grounds of perceptions, no matter how correctly they reflect the conduct of such persons. Nor has any democracy disqualified a candidate on grounds of facing charges in the courts that have yet to be decided. What we have seen in Pakistan is just shocking. The outside world appears to be bewildered. We know that many of them, including our General (retd) Pervez Musharraf, have violated the Constitution, broken laws and done considerable harm to the country and society. Since these are mere allegations and based on our views, we cannot declare the general or any individual guilty. Allegations against any accused must be established in the court of law. Until that point, every individual is clean, free and innocent. Departure from this universal norm of justice, as it has happened, will reflect badly on our society and the court system in the world, with watchful eyes on Pakistan.

The moral and ethical part of the human character, outside the realm of law, must be left to society, the general public and the electorate to form opinions on. There is no legal system in the world, except in non-democratic Muslim countries which are so expansive and inclusive of personal and moral choices of citizens. However, we have incorporated some of the ethical issues into our law under the Islamisation of state and society programmes of civilian and military regimes. This has only increased hypocrisy and contradictions in society, far from transforming our individuals and society on ethical and moral lines. The moral character of the candidates should best be left to the voters to judge.

Perhaps, the idea of purging candidates out of the electoral process through the so-called ethical scrutiny is to have a better quality of representatives. Sorry, this is not the right way and it is never going to work. It will only create the impression of exclusion and selective inclusion. Politicians cannot be angels, and nowhere else in the world are they angels. Their quality improves only through better quality of citizens, frequent electoral runs and upholding of the rule of law tradition. There are no shortcuts, sir.

Published in The Express Tribune, April 23^rd, 2013.