Committed to PEOPLE'S RIGHT TO KNOW
Vol. 5 Num 909 Sun. December 17, 2006  
   
Point-Counterpoint


Is 90 days written in stone?


ARTICLE 123(3) of the Constitution mandates: "A general election of members of Parliament shall be held within ninety days after Parliament is dissolved, whether by reason of the expiration of its term or otherwise than by reason of such expiration."

This is clearly a constitutional mandate to hold elections within 90 days. However, is the mandate absolute? In other words, must it be adhered to no matter what? Must the elections be held irrespective of the conditions prevailing in the country? Must they take place ignoring other constitutional provisions and legal constraints? In our opinion, it is a conditional constitutional mandate.

Article 123(3) is not the only constitutional provision relating to elections. There are other such provisions and they must be read together. Thus, in our view, 123(3) of the Constitution must be read in conjunction with Article 119(1)(b), Article 58D(2) and Article 119(1)(d), which are other relevant constitutional provisions.

Article 119(1)(b) empowers the Election Commission (EC) to hold parliamentary elections. But what kind of elections should they be? Article 58D(2) answers that question. It requires that those elections are held "peacefully, fairly and impartially." That is, the EC must hold parliamentary elections in 90 days and that they are peaceful, fair and impartial. In other words, mere holding elections within the 90-day time limit is not enough, they must meet the peacefulness, fairness and impartiality criteria.

Let us examine the fairness and impartiality criteria. The 1991 parliamentary elections are widely viewed to be the fairest of all elections held in independent Bangladesh and it may therefore be instructive to examine them. What were the enabling conditions prevailing during that time? Do they exist now?

It seems that there were seven major factors that contributed positively to making the 1991 elections fair: (1) absolute neutrality of the caretaker government (CTG); (2) credibility of the EC; (3) impartiality of the bureaucracy; (4) even-handedness of the law enforcement agencies; (5) unity among the people of all walks of life against autocracy; (6) insignificant presence, if any, of criminal elements -- owners of black money and muscle power -- in politics; and (7) commitment of political parties to democracy, particularly to fair elections. Do we have the same objective conditions present at this time?

The credibility and impartiality of the CTG is now in serious question. In fact, because of the questionable actions of the Chief Adviser and President Dr Iajuddin Ahmed, the "non-party" character of the CTG is now seriously compromised. Most citizens have also lost confidence in the EC because of all its controversial actions of the past year and a half and its flouting of the relevant electoral laws and court directives. Two recent controversial appointments to the Commission only destroyed it credibility further. Thus, two most important institutions -- CTG and EC -- directly and indirectly connected to parliamentary elections have now lost confidence of a large segment of the population and have become the biggest stumbling block to acceptable elections.

Thanks to the widespread use of "clientalism" of the successive governments of the past decade, the impartiality and evenhandedness of our bureaucracy and law enforcement agencies are now in serious question. In fact, over the years they have become the instruments for aiding and protecting the interests of the ruling elites. Patronage politics has managed to divide our entire nation, including teachers, journalists, trade union activists, students and the like, into confronting camps. Thus, the unity among people that exited in the late 1990s is now absent due to the divisiveness of our politics.

Criminalization of politics and politicization of crimes are now common phenomena in Bangladesh. Political parties, in all practical purposes, have become dens of criminals. In addition, instead of being united against autocracy, they are now committed to winning elections at any costs to perpetuate their "rights" -- rights bestowed through elections -- to loot and plunder. Consequently, confronting political parties have also become serious barriers to fair elections. Thus, it is our judgment that the enabling conditions for fair and impartial elections do not appear to prevail in Bangladesh at this time.

Fair elections also require a reasonably accurate electoral roll. The Constitution (Article 119(1)(d)) enjoins the EC to prepare the electoral roll for parliamentary elections. Citizens' right to franchise would be impeded if they are left out of the electoral roll because of the ineptness or evil intentions of the EC functionaries. If fictitious names are in the roll, the fairness of the elections would be seriously compromised. Thus, if the Commission tries to hold elections without preparing a dependable electoral roll, it will only meet a part of its constitutional obligations with regard to parliamentary elections. There are now widespread accusations that our EC has so far failed to prepare a reasonably reliable electoral roll for the coming parliamentary elections.

In addition, fair elections require delimitation of constituencies after regular intervals. Article 119(1)(c) of the Constitution entrusts EC with this responsibility. The Delimitation of Constituencies Ordinance, 1976 requires that: "The territorial constituencies shall be delimited afresh upon the completion of each census, for the purpose of general election to Parliament to be held following each census." But our EC has failed to perform this constitutional obligation even though more than five years have elapsed since the last population census held in 2001. Thus, there is now wide variance in the number of voters in different constituencies. For instance, the number of voters, based on the latest available information, vary from the highest 847,000 in Dhaka-11 to the lowest 166,000 in Moulovibazar-1. Even in Dhaka district itself, the difference is stark. For example, compared to Dhaka-11, the number of voters is Dhaka-1 is only 167,000. Such wide variations are not consistent with the concept of fairness.

Furthermore, clean and efficient government through fair elections is the right of every citizen. Thus, the Commission has the obligation to make the elections meaningful in that honest and competent candidates have the fair opportunity to get elected. This requires disclosures of accurate information about the antecedents of candidates running for office.

The High Court Division of the Bangladesh Supreme Court in Abdul Momen Chowdhury and others vs Bangladesh and Others (Writ Petition No. 2561 of 2005) has provided directives for disclosures. However, our EC has so far taken no effective steps to fully and completely disclose the necessary information regarding candidates who will contest in the coming elections. In fact, our repeated efforts on behalf of Shujan to ensure such disclosures have faced only non-cooperation from the EC.

One must also ask -- is the present condition prevailing in the country congenial for peaceful elections? More specifically, has the EC taken the initiative to intern the criminal elements who can threaten peace during elections. Has it taken any effective steps to recover illegal arms which may be used by the criminals? It may be instructive to note that the Indian EC compelled their law enforcement agencies to put behind bars 140,000 criminals during the last assembly elections in Bihar, as a result of which fair elections were held for the first time in that state.

To conclude, the EC is the constitutional body responsible for holding parliamentary elections and it is obliged, under Article 123(3) of the Constitution, to do so within 90 days of the dissolution of the Parliament. However, Article 123(3) is not the only constitutional provision relating to holding parliamentary elections. Thus, the requirement of the article is not absolute, rather conditional, and to conveniently argue that parliamentary elections must be held within 90 days of the dissolution of the Parliament to uphold the Constitution tells only part of the truth.

The Constitution further mandates the EC to make the elections peaceful, fair and impartial. It also enjoins EC to delimit constituencies. The relevant law requires that constituencies be delimited after every census. The court directed the Commission to disclose information about candidates. Thus, to fully meet its constitutional obligations, the EC must create the enabling conditions for peaceful, fair and impartial elections, prepare a reasonably accurate electoral roll, delimit the constituencies and also disclose accurate information about candidates running for elections.

We hope that the members of the Election Commission will read the Constitution in its entirety rather than only part of it.

Dr. Badiul Alam Majumdar, Secretary, Shujan (Citizens for Good Governance).