AT the close of the Constitutional Convention of 1787, when delegates came out of the Independence Hall, one Mrs. Powell is reported to have asked Benjamin Franklin: 'Well, Mr. Franklin, what do we have? A Monarchy? Or a Republic?' Without hesitation, Mr. Franklin replied, 'A Republic, Ma'am – if we can keep it!' The framers of our Constitution, under the leadership of the father of the nation, Bangabandhu Sheikh Mujibur Rahman and the supervision of Dr. Kamal Hossain also gifted us a Republic. In fact, they left it to us as a trust. In the last 42 years, we not only violated this trust, we also — through the so-called elections of January 5 — managed to say goodbye to our democratic system.
Readers may remember that on April 10, 1971, Bangladesh declared its independence for the 'fulfillment of the legitimate right of self-determination of the people of Bangladesh.' The people's right of self-determination is realised only through free and fair elections and democratic governance. Our Constitution, framed a year later, also promised a democratic polity in Bangladesh.
For democracy to exist, elections, that is, voting are required. Thus, The Representation of People Order, 1972 (RPO) was enacted during the Bangabandhu's time to ensure free, fair, competitive and peaceful elections. Article 19 of the RPO provided for the uncontested election of candidates. The purpose of this provision was to declare elected unopposed personalities like Bangabandhu Sheikh Mujibur Rahman against whom no one wanted to contest. It was intended to deal with special cases rather than creating opportunities for the wholesale election of uncontested candidates. That is, uncontested elections are supposed to be exceptions rather than the rule.
I dare say that the members of our first Parliament never thought, even in their wildest imagination, that, at some future date, more than half of our 300 members of the 'House of the People' would get 'elected' without the casting of a single vote by the people. If they foresaw such a possibility, they would probably have not kept this provision in the RPO or added such conditions to it to prevent the present situation from occurring. In fact, the RPO was enacted to ensure contested elections. For example, article 17 of the RPO requires fresh election in the event that a final candidate dies leaving even a lone contestent in the race. Thus, our Election Commission's allowance of 153 candidates elected unopposed on January 5 violates the very spirit of the RPO enacted to facilitate contested elections. Conscientious citizens were much alarmed to see all the manipulations and deceitful acts of the Commission and the political parties during the elections of our Tenth Parliament.
The wholesale uncontested election of MPs, validated by Article 19 of the RPO, also violated our Constitution. Article 65(2) of our Constitution states: 'Parliament shall consist of three hundred members to be elected in accordance with law from single territorial constituencies by direct election ... members shall be designated as Members of Parliament.' The language here is direct, clear and unambiguous, and hence our constitutional scheme leaves no scope for any deviation from it. In other words, 300 members of the House of the People must be chosen through direct elections, requiring voting by their constituents.
To allow any exception to Article 65(2) would require another constitutional provision. That is why Article 65(3) was added for reserved seats for women, which have no single territorial constituencies and they are not to be chosen by direct elections. Thus, an explicit and unequivocal constitutional provision for direct election and voting cannot be supplanted by a statutory provision that allows large-scale, wholesale 'elections' of MPs without voting. Therefore, it is difficult to call 153 MPs elected unopposed without voting as MPs. It should be noted that such questionable standing of these MPs also violates Article 11 of our election, which calls for democratic governance and 'effective participation by the people through their elected representatives in administration at all levels'.
It may be noted that in recent years, Courts have termed the act of voting as a part of the citizens' right to expression, that is, their fundamental right [(2002) 5 SCC], and the fundamental rights of citizens cannot normally be denied. Yet, this election disenfranchised 52 percent of the total number of voters living in 153 constituencies where there was no voting.
We managed to say goodbye to our democratic system through the one-sided election of January 5 in another way. Democracy is based on the will or consent of the people, which is granted through elections. Based on the highly questionable estimate of our Election Commission, about 40 percent or one crore 72 lac voters voted in 147 constituencies, where some sort of voting took place — which totals only 18.69 percent of the nearly nine crore 20 lac voters. Thus, based on the Commission's estimate, the voter turnout rate in the Tenth Parliament election was less than 19 percent. On the other hand, according to the Election Working Group (EWG), only 30 percent of the voters, based on only counting of the counterfeits of ballot books, voted in 147 constituencies, which is also grossly overstated because of large-scale fake voting and ballot box stuffing. Based on this estimate, still the voter turnout rate in January 5 election was less than 15 percent. This kind of voter turnout rate – 15 or 19 percent (or much less, according to many observers) – no way indicates consent of the people.
It should be further noted that the Indian Supreme Court, in Kuldip Nayar v. Union of India, [(2006) 7 SCC 1], further observed, 'Parliamentary democracy and multi-party system are an inherent part of the basic structure of the Indian Constitution.' The same should be true for Bangladesh, too. But the Tenth Parliamentary election was not inclusive and did not reflect multiparty democracy. For example, in Bangladesh 41 political parties are registered under the Election Commission. Of these, only 12 or 29 percent of the parties, many of which are fringe organisations, participated in the January 5 election. In this election, only 543 candidates contested — the lowest in our history —of which 153 got elected unopposed. In contrast, one thousand 567 candidates contested the Ninth Parliament election. It has already been stated that the voter turnout rate in recent elections was negligible.
To conclude, the implications of the so-called election, in which 153 MPs elected unopposed, is mind-boggling. If the elections of the Tenth Parliament are to become the precedent, there would not be any barrier to the unopposed election of a larger number of MPs the next time. Given this and also the unscrupulous behavious of our politicians, we cannot totally rule out the possibility of someday 300 MPs getting elected without contest. Thus, without hesitation, we can say that, with the one-sided and controversial election of the Tenth Parliament, we have set upon a slippery slope, which amounts to saying goodbye to our democratic system. Through this, we have not only undermined our constitutional commitment, but also ignored international laws (e.g., The Universal Declaration of Human Rights) and agreements (e.g., The International Covenant of Civic and Political Rights), which oblige us to hold 'genuine' elections.
The writer is Secretary, SHUJAN (Citizens for Good Governance)