Barrister Asad-ul-Mulk
Helping a fellow brethren in need, extending to him financial support, providing him with the basic amenities of life, paying off his debt, shouldering the burden of his outstanding bills, gifting to him a house, a car, a washing machine, an oven – are all noble and altruistic acts. But when the same are done near general elections, in return for electoral support, they are likely to constitute statutory crimes.
In recent days, videos have surfaced of political rallies in Chitral where cash, wheat, flour, tomatoes etc. are being distributed to people in mass. Stories are circulating of sewing machines, cricket gear and household necessities being donated to people by contesting candidates in return for support on poll day.
I have been asked to share my legal opinion on the proprietary of such antics. Thus, I write this article to shed light on the legal aspect of the issue.
‘Freedom of contract’ is the ability of parties to bargain and create the terms of their agreement as they desire, without outside interference from the government. Freedom of contract is a hallmark of laissez-faire economics and capitalist societies. Freedom of contract is recognized by Article 18 of the Constitution of Pakistan and is supplemented by Article 23 and 24 of the Constitution which recognize the rights of citizens to hold and dispose of property owned by them.
One of the earliest reported English case on the subject is \’Printing and Numerical Registering Co v. Sampson (1875) 19 Eq 462\’ decided by the Court of Appeal in the 19th century, which vociferously defends ‘freedom of contract’. However, even the said case recognizes that ‘freedom of contract’ cannot render every agreement a valid contract. In other words, some agreements in spite of having all the features of a valid contract cannot be treated as valid contracts, as their enforcement would be contrary to law or public policy.
This principle of the common law has been entrenched into statutory law in the shape of Section 23 of the Contract Act, 1872. The legal question that then begs for an answer is; whether there are any legal restrictions on the sale of electoral rights or is such a sale contrary to public policy?
Section 171-B and 171-E of the Pakistan Penal Code 1860 in unequivocal terms not only prohibit the sale of electoral rights, such as the bright to vote, for monetary consideration or for receiving some other gratification in return, but they also criminalize such acts.
Section 171-B and 171-E of the Pakistan Penal Code, 1860 is crouched in a language which is broad and expansive, accordingly “Whoever gives a gratification to any person with the object of inducing him or any other person to exercise any electoral right or of rewarding any person for having exercised any such right; or accepts either for himself or for any other person any gratification as a reward for exercising any such right, or for inducing or attempting to induce any other person to exercise any such right, commit the offence of bribery”.
The legislature deliberately used a language which was wide and encompassing into outlaw the sale of electoral rights in any way, from and manner.
The sale and purchase of electoral rights, when carried out not at an individual level but on a mass scale also tantamounts to the exertion of ‘undue influence at election’, which again constitutes a statutory crime within the meaning of Section 171-C and 171-F of the Pakistan Penal Code, 1860.
Augmenting the above are Section 132 and 234 of the Elections Act, 2017. Accordingly, the elections expenses of a candidate for the National Assembly and Provincial Assembly cannot exceed rupees ten million and five million respectively. For a singular violation, a fine of rupees fifty thousand can be imposed by the election monitoring officer. For a subsequent or repeated violations, the case of the delinquent candidate can be referred by the election monitoring officer to the Election Commission, which is endowed with power under Section 234 of the Elections Act, 2017 to disqualify the candidate and pull him out of the electoral race.
Candidates levelling allegations of the sale of electoral rights, as well as candidates against whom allegations of the sale of electoral rights are leveled should be desirous to allow an investigation into the matter. If the allegations are true, the delinquent candidate should be prosecuted. And if the allegations are false, the investigation should so declare and thereby restore to the candidate against whom baseless allegations were levelled his honour.
The letter and spirit of the law is very clear. It unequivocally renders the sale of electoral rights a statutory delict. It recognizes the moral turpitude of such antics. It seeks to arrest the infiltration of electoral clientelism and patronage politics into the voting system. But will the law actually prevent any delict depends on how the law is wielded by those entrusted to enforce it i.e. the Election Commission, and the officers authorized by it to monitor elections, as well as the enforcers of criminal law. The foregoing restraint is further augmented by the inherent procedural constraints of the law.
Such being the position, the people still need not worry. “An army of principles will penetrate where an army of soldiers cannot” wrote Thomas Paine, one of America’s founding fathers in Agrarian Justice (1797) and continued, “[I]t will succeed where diplomatic management would fall: it is neither the Rhine, the Channel, nor the ocean that can arrest its progress: it will march on the horizon of the world, and it will conquer”. The best ultimate safeguard against moral degradation is not the law or a protracted legal process, the ultimate safeguard is the consciousness of people themselves.
Whenever and wherever a people refuse to mortgage their principles, there no amount of bribery, enticement or inducement can cause them to do otherwise. And a people in whom moral degradation has set in, there neither the stringency of the law, nor the felonies nature of the act can prevent the commission of the delict.
In the real sense, the test is not of the Election Commission, the monitoring officer or the law enforcing agencies. The test is of Chitrali people.
It is indeed very disappointing to see the trade in JUIF ‘s vote market. More disappointing was the ignorance or lethargy of contesting candidates who did not challenge the candidature of a man with criminal records.