The constitution of 1973 is the basic law governing the subsequent legislations, rules and regulations of the state of Pakistan. The constitution of Pakistan not only deals with the fundamental rights but also provides protection to the rights of the minorities. It is quite understandable that the basic object in having a constitution would be to ensure the prosperity of the people to enable them to attain their rightful and honoured place among the other nations around the globe. However, it would not be wrong to remind our legislators that no law should be in contradiction with the provision of the Constitution of Islamic Republic of Pakistan, 1973, which further requires the principles of democracy, freedom, equality, tolerance and social justice as specifically articulated by our religion (Islam).
There are certain legislations which are in violation of certain provisions of the constitution. As the general elections are expected in the near future, the Election Commission of Pakistan is working efficiently to ensure free and fair elections. However, the question is whether the elections would be fair if they do not comply with the constitutional requirements, or by not providing the citizens of Pakistan an equal opportunity to contest elections, and where the elimination of all forms of exploitation and gradual fulfilment of fundamental principles are not ensured. The answer is a big NO.
Every citizen should be at liberty to contest elections, but regrettably due to various inconsistencies between the existing laws and the constitution, this cannot happen. For the purposes of elections, the Representation of the Peoples Act 1976 provides the procedure and requirements of elections to the National Assembly and the provincial assemblies, it also guards against corrupt and illegal practices and other offences at or in connection with such elections and other matters arising out of or connected therewith. However, section 49 of the Act of 1976 imposes certain restrictions on the election expenses by debarring anyone other than the candidate to incur any election expenses on behalf of the candidate and it further imposes restriction on the maximum amount of expenses during or before the elections.
Apparently, it seems that the law was to ensure the contest of elections without any show of wealth and dominance of wealthy candidates. But in reality, the maximum limit has been grossly bypassed by many candidates who spend huge amount of money beyond the limit. Furthermore, the law has also discriminated against the patriot individuals with leadership skills but with insufficient funds to contest the elections. As most of the contesting candidates have no leadership skills but have funds in hand, they are in a better shape to spend the funds and secure their seats. The law has also discriminated in their favour, even if the spending is kept within limit, as it offers the candidates with more financial backing a better position over an individual having appropriate skills but insufficient funds.
Contrary to the limitation imposed under the Act of 1976, article 25 and 33 of the constitution deals with the fundamental rights of equality amongst the citizens and non-discrimination, which in any way should be ensured by the state. Furthermore, article 62 of the constitution provides qualification for the membership of parliaments but it does not address the limits on expenditures during or before the elections. It is a common understanding that the voter has to vote in appreciation of the manifesto of the candidates and their proposed contribution towards the welfare of the society. Therefore, it is my opinion that the limit on the election expenses should be reduced to a minimum level affordable by an ordinary individual.
The limitation imposed in section 49 of the Act of 1976 is contrary to the fundamental rights assured to the citizen of Pakistan under the constitution, and under article 8 of the constitution such provisions which are contrary to the fundamental rights are void. Therefore, it is suggested that the law imposing maximum limit to the election expenditures should be reduced to minimum to bring it in line with the provisions of the constitution.
If the elections are conducted under the current law, then the entire exercise would be inconsistent with the provisions of the constitution. If the elections are held under the existing law, the elections would be in violation of article 270-B of the Constitution of Pakistan.
The writer is a practising lawyer.