.. by Barr 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 one time too many 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 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 right to vote, for monetary consideration or for receiving some other gratification in return, but they also criminalize such acts. Page 2 of 3 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 to 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 leveling 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. The law is often slow,cumbersome and taxing.
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 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 enforcement agencies. The test is of the Chitrali people .. Barrister Asad-Ul-Mulk, Chitral 05 Feb 2024
4 thoughts on “Chitral and the sale of electoral rights”
Morally, legally and technically the views expressed in the article are correct and true. Once in five years people are given the chance to elect their representatives using their vote and general will and spoiling this chance through unfair means is against both law, morality and basic democratic norms. But if we look practically at what has been happening in our not-so- good democratic culture we feel that what is currently happening in Chitral is its unfortunate extension.Floor crossing, unhealthy trends during senate elections, herding of voters through tribal and feudal connections, announcement of special projects close to electioneering time and half- baked special programs are some other ways of influencing voters. After all it is money and power to which party bosses mostly revert while awarding tickets. What is happening in Chitral or elsewhere need to condemned in the strongest terms; but we also need to cleanse many other areas to make our democratic process acceptable. Hope fresh experience will help us all.
Fearing that the Quraysh of Mecca would lose their high standing among the Arabs, they decided to bribe the Prophet (peace be on him). Utbah ibn Rabi’a, the leading man of the tribe Abdu Shams offered his service to go to the Prophet with the offer. Addressing the Prophet he said: “O son of my brother, you have rifted our community, declared our way of life to be foolish, spoken shamefully of our gods and our religion, and called our forefathers infidels.” He then proposed to the Prophet: “If you are seeking wealth, we will put together from our properties; if it is the honor that you seek, we will make you our chief and no decision will be taken without your consent; and if you want kingship, we will make you king.” In response, the Prophet recited the verse of the Qur’an that he had recently received (41:37). So much hatred was created against the Prophet in the people’s hearts by the Quraysh including his close relatives. His cousin Abd Allah, son of his father’s sister. She had named her son Abd Allah in loving memory of her younger brother, father of the Prophet. Rejecting the Prophet’s message Abd Allah said to him on his face: “I will not believe in you not even if you take a ladder and I see you on it up to heaven,” words that saddened the Prophet deeply. As Muslims, we either adopt the character of the Prophet or the character of those who offered him bribes is a choice for people of conscience. Bribery from the very beginning has been antithetical to the Islamic Faith.
Very nice article for a class lecture or theoretical interpretation of laws related to voting for citizens in a democracy.
Democracy through out the world discourages buying and selling votes and Pakistan is expected to practice the same. However the ethics of vote buying commentators disagree on the underlying rationals for its prohibition. At least there are three arguments – equality, efficiency and inalienability that support vote buying and selling. We saw this buying and selling ordeal from upper House to lower tier level, even a couple of Chitrali momins also made reasonable money, according to sources. So the current election is not different than the previous elections, we shouldn’t be surprised.
The two thoughts by friends of mine about this article and the current situation is quite interesting.
The first one deals with the actual issues of where ‘money and power’ are the major factor in political maneuvering.
The second one talks about seventh century tribal society practices, hardly any relevancy with the 21st century modern state.
I appreciate Noor Shahidin’s comments. Exchanging intellectual views is a positive thing that enhances and expands the collective intellectual horizons and brings maturity to intellectual evolution in society. I, however, found in the commentary a few things that need further clarity. Firstly, Noor Shahidin seems to consider that buying and selling votes is a legitimate process in a democracy. Secondly, the terms equality, efficiency, and inalienability that he uses as underpinning principles for this trading in votes. Thirdly, by stating that ‘the current election is not different than the previous elections,’ he accepts that vote trading is acceptable within the laid-out principles of the democratic process. Finally, he seems to be saying that in the seventh-century tribal society, bribery was not acceptable while today in the twenty-first century, it is an accepted value and principle of democracy. Thus, to talk about this is irrelevant today.
If buying and selling votes is a legitimate activity in a democracy, then shouldn’t it be enshrined in the Election Act? If the present election is not different from the past elections, then isn’t it that two wrongs don’t make a right? Regarding the terms equality, efficiency, and inalienability the questions to be asked are: what is equality in buying a vote or selling one’s vote, and how do you define it? What is efficiency in this context, does it mean one buys more votes or one who sells more votes is the most efficient? The third term is probably a reference to the vote as an inalienable right of a citizen. Isn’t the right inalienable to cast a vote rather than to trade the vote?
The last comment is a challenge to the value system, elements of character, ethics of behavior, and Islamic faith-based values. Whether it is the seventh century or the centuries before, politicians, moral philosophers, and scholars have been inspired by and made references to certain human values propounded by the Greek philosophers, and founders of different religions. These values are universal because they are not time, place, and cultural bound, have been valued throughout human history and continue to be so. The value of honesty and integrity is one such value that no society denies or rejects it. This value is a converging point for all who belong to different cultures, faiths, and philosophies. The difference is where one finds a model, an exemplar, or an ideal person who embodies this value of honesty and integrity. This person for Muslims is the Prophet Muhammad, peace be upon him, the source of values regardless of time, time and context.
Dr. Mir Baiz Khan