A clash of rationalities

Laws prohibiting the buying and selling of votes have been with us for a long time. Yet we have probably not heard of anyone who has ever been convicted of this electoral offense. That’s because it’s not easy to prove it. Neither the buyer nor the seller would have any motive to file a complaint, or to cooperate in the filing and prosecution of such a case.

The law has its own rationality, however. The thinking behind it is that the mere existence of the prohibition should deter the commission of the act. Perhaps it does, and perhaps it doesn’t. What we know is that the practice is quite common in our elections, especially at the local level.

If it were regarded as a particularly horrendous offense—one that gravely distorts the true will of the people—then the Commission on Elections or the police would have thought of deploying entrapment teams to catch sellers and buyers alike in the act of committing the crime. But the Comelec has more than enough work in its hands going after people who employ violence, coercion, and deceit to shape electoral outcomes.

The real deterrent against vote-buying and selling is moral. Or to be more precise, it has to do with value rationality. People know that the highest value in an election is to elect individuals who can best serve the community, though they may not always reflect this in their voting behavior.

Politicians know this, too. Which is why no one, except the most stupid and cynical, treats vote-buying as the equivalent of an outright purchase of a service or a product. They portray it rather as an offer of help or a gift. Thus, what the act activates and relies upon is the unwritten norm of reciprocity rather than the contractual obligation of a sale.

During the 1986 snap election, which pitted the widow Cory Aquino against the dictator Ferdinand Marcos, Cardinal Sin, then Archbishop of Manila, advised voters who might be offered money for their votes to “take the money, but vote according to your conscience.” The reasoning was: If you desperately need the money to feed your family, it’s all right to accept it, but you don’t have a moral obligation to deliver what is expected.

The Cardinal was roundly criticized for expressing that view. For, ironically, it might have just made it easier for people to accept a bribe, believing they were still free to vote according to their conscience. Conscience, however, may not necessarily instruct someone who takes the money to ignore the need to reciprocate. “Utang na loob” reciprocity plays such a central role in our lives that it is often more binding than a written contract, easily trumping the law and notions of responsible citizenship.

The correct action, both in terms of value rationality and legal rationality, is, of course, to refuse to exchange one’s vote for cash. But this may not always be as easy as it sounds. Under certain circumstances, the refusal to accept money from a vote-buyer might itself be interpreted as a hostile act, marking the refuser as a political enemy.

Indeed, while vote-buyers may no longer be able to ascertain if voters who accepted money actually delivered their end of the bargain, they know that one who outrightly refuses to take the money is potentially a dangerous person. For this reason, particularly in small towns ruled by powerful clans, most ordinary voters would prefer to be identified as nonpolitical than as staunchly independent.

The “education of consciences” that Benedict XVI speaks of precisely calls attention to the heroic character of principled political participation. It has to be sustained against all odds, and for no other reason than because it is the right thing to do. In contrast, while legal rationality has become the preferred guide to action in modern society, it is also probably the least convincing when it comes to defining what is good and what is bad. Let me illustrate.

It seems easy for presidential candidate Manny Pacquiao and his lawyers to argue that no law is violated when Pacquiao distributes bags of rice, groceries, and P1,000 in cash to people who line up to receive the “ayuda” he dispenses as in his recent sorties. The legal reasoning is that, while he is already a declared candidate, the prohibition against distributing cash or things of value by a candidate does not apply to him yet because the official campaign period has not yet begun.

Gus Lagman of Namfrel, who wants the Code amended, counters: “It may not be a violation yet of the Omnibus Election Code. It may not be illegal. But it doesn’t look good … It appears that he is giving out money so people will vote for him.” Indeed, since Pacquiao has filed his candidacy, whatever actions he pursues in aid of election must fall under the Comelec’s jurisdiction.

But that’s not the way legal reasoning works. We have seen this in the countless ways politicians and political parties explore the outer limits of the law in search of loopholes. The mockery that has been made of the party list system is a perfect example of this. Another case in point is the brazen manner in which provisions pertaining to substitution of candidates beyond the deadline for the filing of candidacies has been abused.

Things like these put into question the rationality of the law and its usefulness as a guide to desirable action. If something does not violate the letter of the law, does that necessarily mean it is legal? The courts may say yes, even when the facts point to the presence of dishonest intent. Surely, upholding the law has to mean more than the studious avoidance of what is prohibited.