Quick notes on the current Hajji vote debate

While BNP is no doubt raising the issue of Hajj pilgrims not being able to vote if the elections are held on December 18, I am troubled by the stance on this being taken by a number of electoral law experts in the country. DS reports (with my italics added):

The BNP-led four-party alliance is using religion as a political weapon–violating the electoral code of conduct--to force the caretaker government and Election Commission (EC) to reschedule the December 18 parliamentary polls, said legal experts.

The alliance’s demand for rescheduling the polls so that hajj pilgrims can cast their votes is a clear violation of the electoral code of conduct, which restricts registered parties and candidates to using religion for political or election purpose, they said.

While an election commissioner told The Daily Star this requesting anonymity, Ghulam Rabbani, former judge of the Appellate Division, also said the electoral code of conduct says no propaganda should be made in favour of a particular party or candidate in election invoking the religious sentiment.

”So, saying the date of election fixed by the Election Commission would not allow the hajis to cast their votes would infuriate voters of the families of those hajis and thereby would fetch their votes in favour of that party,” Justice Rabbani said.

The electoral law experts said the four-party alliance is discriminating against religions by speaking only for Muslims performing hajj this year. The party has not said anything about any non-Muslim voters staying outside the country during the polls, they said.
According to a provision stipulated in the Representation of the People Order, a registered political party cannot discriminate against religions, they added.

This is all nonsense on stilts. There is nothing “clear” about how this is a violation. Frankly, the reasoning is more than a little shoddy.

There are two separate arguments here being put forward:

(1) That putting forward the Hajis alleged grievance would lead to the infuriation of the family memebers, which would lead to more votes for the 4-party alliance. (This is the religion as a political tool argument.)

(2) That putting forward the Hajis alleged grievance was discriminatory of other religious groups that may or may not be outside of the country at the same time since their (existing or non-existing) grievances were not also mentioned at the same time. (This is the discrimination against religious groups argument.)

Look at the tenuous chain of causation in (1). First, it is pretty clear what the intent of the 4-party alliance is in raising the issue. They want a delay of the elections. Any infuriating effects are incidental. But more importantly – what’s causing the infuriation? If it is true that family members will get infuriated (and I hardly think they really will…), it won’t be because BNP and its partners have raised the issue – it will necessarily be because their family members didn’t get a chance to vote. At most, the 4-party alliance raising the issue only makes it more likely that they will realize the issue.  The 4-party alliance doesn’t create it. It doesn’t cause it.  (More likely, if such a grievance really does exist – and I doubt that it does, outside of the imaginations of these experts – the 4-party alliance is only raisign the grievance to a forum where they will be heard. If this is the case, then the commentariat are completely confusing the direction of causation!)

(2) is just a muddle-headed argument.  For it to be legitimate, first, the one’s making the argument have to show that there are other religious groups whose particular circumstances are requiring them to be outside the country at the time of the elections – which what the case is for this group of Hajis. There are no such groups, so it’s silly to even raise the issue of such hypothetical groups.

Second, the argument presupposes that the religious equal protection/anti-discrimination requirements of our constitution and the electoral law require that any time the grievances of one group of people who happen to share a particular religious background are argued, the grievances of all other groups of people who happen to share other religious backgrounds have to be argued as well – or else it’s illegitimate. That kind of condition is not a recipe for equal protection. It’s a recipe for equal protection arguments being impossible to vocalize.

The learned commentators should also realize that their equal protection/anti-discrimination argument cuts both ways.  Going by their reasoning, the hajis are being discriminated against as well as they perform a particular religious rite.

It’s wiser to leave religion out of this. The case of the Hajis needs to be looked at on its own merits. Do they, as Bangladeshi citizens registered to vote, have a right to vote? If yes – should the state try to accommodate this right as far as possible. Even if the answer is no – does it make policy sense to accommodate them? Are there things that can be done short of delaying the vote that is a more sensible accommodation than the one being put forward?

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