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Appendix 2
Ace Project, file pcc08:
Restrictions on candidacy (Pinto-Duschinsky, 1998)
Rules concerning the right of people to become candidates for elective office often reflect a conflict between two opposing principles. On the one hand, according to the guiding principle of political participation, restrictions on candidacy should be as limited as possible. As an ideal, everyone who has the right to vote should have the additional right to stand for office (to use the British idiom), or (according to American terminology) to run for office. On the other hand, in view of the responsibilities of public office, the qualifications of candidates ought arguably to be more testing than those of ordinary electors. Moreover, there are some jobs which need to be held by those who are politically-neutral; those holding such positions should therefore be ineligible to stand for office.
Dr Goodwyn-Gill has commented on the legal principles, such as those embodied in the European Convention on Human Rights, which concern restrictions on the right to stand for public office. «European jurisprudence recognizes a variety of conditions and exclusions [from the right to candidacy], including penal detention and residence requirements, but provides generally that they shall be prescribed by law and reasonably necessary in a democratic society. They must also not be arbitrary or violate the principle of non-discrimination ... to deny political rights merely on the basis of political opinion poses a direct challenge to the democratic process itself.»
Examples of existing restrictions are as follows:
Citizenship
This is a normal, though not universal qualification. For elections to the European Parliament, candidates in any one country may be citizens of any other country within the European Union. In British and Jamaican
elections, citizens of Commonwealth countries may be candidates.
In other cases, citizenship requirements are more stringent for candidates than for electors. In the United States, a candidate for the presidency must not only be a citizen but must, in addition, be a citizen by birth. There is a similar qualification for the Senate of Colombia and for both legislative chambers in Bolivia. In the United States, 9 years' citizenship is required for the Senate and 7 years for the House of Representatives. In Argentina the figures for the Senate and Chamber of Deputies are 6 years and 4 years respectively; and in Uruguay, 7 years and 5 years.
Residence
Special residence qualifications include: Costa Rica 10 years (not necessarily in the constituency where the candidate is standing), Norway 10 years (but not necessarily immediately prior to candidature), and for the presidency of the United States, 14 years.
In the United States, a candidate for the U.S. Congress must be resident in the state in which he is standing, while candidates for the Philippines House of Representatives must have been resident in the district for which they are standing for a minimum of one year. In Ecuador, candidates must have been born or resident for 3 years in the province.
Age
Candidates for the U.S. House of Representatives must be at least 25 years old (compared with the voting age of 18), while the minimum age for the Senate is 30, and for the presidency 35. Other age barriers include 35 for senators in Bolivia, Colombia and The Philippines, and 40 for senators in Belgium and Italy.
Finances
Bankruptcy or insolvency is an occasional barrier, especially in countries influenced by the Westminster Model: for instance, in Australia, Britain, Fiji, India, Ireland, Jamaica, Luxembourg, Malaysia, Malta, Mauritius, South Africa, and Sri Lanka.
Criminal record
Countries where those with criminal convictions are barred include: Australia, Belgium, Bolivia, Brazil, Britain, Colombia, Fiji, Iceland, Israel, Italy, Jamaica, Japan, Luxembourg, Malaysia, Malta, Mauritius, The Netherlands, New Zealand, Norway, South Africa, Sri Lanka, Zimbabwe.
Mental disability
Insanity or being of unsound mind is a bar in countries including Belgium, Bolivia, Brazil, Britain, Fiji, Ireland, Italy, Jamaica, Malaysia, Malta, The Netherlands, New Zealand, Norway, South Africa, Sri Lanka, Switzerland (which also precludes 'feeble-mindedness' - something that cynics might suppose would disqualify a great many politicians), Turkey and Zimbabwe.
Other kinds of personal disability
These include Bolivia and France - failure to have completed military service, Costa Rica, Italy and The Philippines - illiteracy, Mauritius - inability to read and speak English, and Costa Rica - relatives of the President of the Republic.
Incompatible offices
Current service in the armed forces and in civilian branches of the public service are the most important source of incompatibility with candidature for elective office. Among many examples are Britain, Germany, Jamaica, India, Malaysia, Malta, Mexico, Turkey, and Zimbabwe.
Government contractors are barred from candidature in Australia, Ecuador, Fiji, India, Jamaica, Mexico and elsewhere.
There is no shortage of more surprising or unusual types of disqualification. Practicing lawyers and clergymen in Catholic orders are disqualified in Argentina, as are members of the Royal Family in Britain, university professors in Turkey, primary school teachers and keepers of brothels in Luxembourg, salaried Rabbis in Israel, registrars of mortgages in Greece, and legal representatives of foreign companies in Ecuador.
Ideology
It seems reasonable that candidates who advocate the destruction of the state in which they are wish to stand for office, who are committed to terrorism, or who are opposed to democracy should be barred. Yet it is difficult to draw a line between banning those who wish to use democratic structures only to ruin them and those who are followers of unpopular ideologies which should nevertheless be tolerated in a pluralist society. The limits of tolerance depend partly on the condition of the state at the time of the election. There can be a greater tolerance for seemingly extreme views in peacetime than during the emergencies of war.
There is always a danger that restrictions of the rights of allegedly disloyal, anti-democratic, extreme, or violent elements will be enforced in an unfair manner. Restrictions on candidatures on ideological grounds may serve as an excuse by an authoritarian regime to hamper opposition, or they may be applied unevenly. It is open to comment that restrictions in postwar West Germany on anti-democratic persons were applied with greater vigor to Communists than to those with Nazi records. The restrictions on Communists in the United States during the Cold War is another controversial matter. Professor Katz reports that Communist candidates are still banned in 9 out of 50 states in the U.S.A.
Other examples of ideological tests are Indonesia, where candidates must be loyal to Pancasila as the basic ideology of the State, and Iraq, where candidates must uphold the principles and aims of the July 1968 revolution. (It may be objected that these examples, cited by Dr Goodwyn-Gill, are not of practices in pluralist democracies.)
Religion
For example, according to the constitution, the Argentinean president must be a Roman Catholic. In Iran, candidates must either belong to a recognized religious minority or they must have a belief in and an active obligation to Islam.
(The main sources of information in this appendix are Katz, 1997, especially Table 14.1 and, for the section on ideology, Goodwyn-Gill, 1994,54-55.)
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