Over the past few weeks, the Prime Minister of Pakistan, Mr. Shahid Khaqan Abbasi, has made repeated jabs at Chairman Senate, Mr. Sadiq Sinjarani, and in particular about the alleged “sale and purchase” of votes that resulted in Mr. Sinjarani being elected Chairman of Senate. These comments of the Prime Minister stem from the narrative of his Quaid (and his daughter), whose plans of amending laws related to the judiciary, NAB (and Army?) were tied directly to the imperative of controlling Senate.

In the circumstances, a few questions need answering: were votes bought and sold during elections for Chairman Senate? Perhaps. Is it lawful to buy and sell votes? Absolutely not. Does the Prime Minister Abbasi have a valid point? Yes. Have elections in Pakistan (any election!) become, for the most part, an equation of ‘who spends the most money’? Yes. Should the influence of money, in purchase of votes, be prohibited? Certainly.

But, while Mr. Abbasi’s contention regarding Senate elections might be valid, let us ask the worthy Prime Minister a few more questions: Is this the first time that the worthy Prime Minister has noticed the use of money, for the purpose of buying votes, in Pakistani elections? Is it lawful for PML(N) members to purchase votes in their constituencies (as evidenced through several video clips that have surfaced over the last few years)? Has PML(N) ever conducted such an inquiry against its own members (ever!)? How much money was spent by Ayyaz Sadiq (and Aleem Khan) in the bye-elections? Was Mr. Abbasi’s conscience not jolted into action then… simply because PML(N) won that seat? Would he care to call a report for the amount of money that was spent by his party members in the last general elections?

Maybe he has some soporific answer to such questions, but would he care to explain what happened in the Asghar Khan case and creation of the IJI? Did General (retd.) Asad Durrani (the then DG ISI) and others not present sworn affidavits that Nawaz Sharif and company were paid money to bribe politicians against PPP? Did the honourable Supreme Court not direct the FIA to take action against all responsible individuals (including Nawaz Sharif and Shehbaz Sharif)? Does the FIA not work for the Prime Minister? Has Mr. Abbasi ordered the FIA to comply with directions of the honourable Court, against his own leadership?

Also, why has implementation of campaign finance laws (relating to expenditure of money in the electoral process) never been a priority for PML(N) government during its three decades of governance? Why has Nawaz Sharif – himself on trial for possessing more assets than his lawful income – been blind to financial abuse in the elections? Or is this just another of the things that he now ‘regrets’ – like approaching the honourable Supreme in Memogate and cheering the dismissal of Yousaf Raza Gillani?

In the circumstances, is PML(N)’s protest against alleged use of money for election of Chairman Senate aimed towards improving the electoral process? Or, instead, is it simply the losing gasp of a political party that was banking on Senate to unleash their (mala fide) legislative agenda?

Either way, in an election year, we should welcome this debate about the use of money in elections, and use it to institute structural reforms in the electoral framework.

In terms of applicable law, the idea of accountability for sources of funding (for political parties) emanates from the Constitution itself – Article 17(3) – which mandates that “every political party shall account for the source of its funds”, as prescribed by law. Furthermore, under the Election Act, 2017 (a successor to the Political Parties Order, 2002), each political party is required to submit an annual statement of assets and liabilities, income and expenses, as well as sources of its funds to the Election Commission. The statute further stipulates that the party leader must certify that no party funds have been received from “prohibited” sources (which may be confiscated by the Election Commission).

For individual candidates, the Election Act, 2017 (a successor to the Representation of People’s Act, 1976) mandates that every candidate, at the time of submission of the nomination papers, must provide a statement of “assets and liabilities”, along with those of his/her spouse and dependents, which are open for anyone to “inspect”. The fact that the new nomination papers have omitted several critical disclosures is a debate for another time (the issue is sub judice before the honourable Lahore High Court and the Islamabad High Court). Regardless, elected members are required to file a yearly statement of assets and liabilities with the Election Commission. And in case any such declaration is “false in material particulars”, the candidate can be prosecuted for “corrupt practice”.

Importantly, section 132 of the Election Act, 2017 stipulates a cap on the total amount of funds that can be expended, in any constituency, by a contesting candidate (or his supporters). Specifically, the law states that “election expenses of a candidate shall include the expenses incurred by any person or a political party on behalf of the candidate or incurred by a political party specifically for the candidate”. And that no such expenditure can exceed: (a) “one million and five hundred thousand rupees for election to a seat in the Senate”; (b) “four million rupees for election to a seat in the National Assembly”; and (c) “two million rupees for election to a seat in a Provincial Assembly.”

Now, can Prime Minister Abbasi certify that every elected candidate of PML(N) spent no more than these specified limits, during their electoral campaign? Did he, himself, adhere to this prescription of law? Or did his party and its candidates (much like all other parties and candidates) “buy” votes through extra expenditure (on personal as well as development issues)? Will the governing party certify that these provisions will be adhered to in the upcoming general elections? Will Mr. Abbasi personally sure of it? continue to be expended for purchasing votes by the governing (and other parties)?

Surprisingly, however, combing through our jurisprudential history reveals that virtually no litigation of note has ever been brought to the courts on issues of campaign finance. The reason for this is not because all parties and candidates have only ever used legitimate sources of funding, but that since members from all sides of the political divide are guilty of violating campaign finance laws, no one seems interested in raising the issue. And as a result, our political process has been reduced to a simple equation of who can spend the most money running for elections (and then recover it during the term in office to contest once again).

By transforming the election process into a capital-intensive exercise, we have given up on the ideal of allowing ‘anyone’ an opportunity to contest. This sad reality systematically ostracizes majority of our population from ever aspiring for political office. And we have reached this point for no other reason, but a lack of enforcement of law that already exists on our statute books.

If freedom is the glory of God, and democracy its birth-right, then the provisions of our election laws must be enforced in letter and spirit to allow a larger fraction of our population to have the opportunity of participating in this birth-right. Only in this way, can we widen the circle of opportunity in our country, and deepen the meaning of our freedom.

Prime Minister Abbasi would do well to put his own house (party) in order, before pointing fingers at others. Because reform, like charity, must begin at home.

 

The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School.

saad@post.harvard.edu

@Ch_SaadRasool