Brig Gen (retd) M Sakhawat Hossain, former election commissioner and senior fellow at the South Asian Institute of Policy and Governance (SIPG) of North South University (NSU), talks about the latest amendment to the Representation of the People Order (RPO) and what the Election Commission's role should be in the coming months, in an interview with Mohiuddin Alamgir of  The Daily Star.

The latest RPO amendment has allegedly curtailed the Election Commission's power to suspend voting and withhold results. What is your take on the issue?

There are some laws that are in black and white and do not require any interpretations. In 2008, during the tenure of ATM Shamsul Huda, an amendment of Section 90A of the RPO was made so that the commission could stop or withhold polls in some centres or in an entire constituency during the election process (after the announcement of the election schedule), in case of any violence, or if an environment is created where there can be no free and fair election.

This provision has been in place since 2008, and even the incumbent EC has utilised it. Now the commission says that they proposed the amendment for clarification of the law. With the new change, the EC would be able to suspend the election only on the polling day.

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The amendment also bars the EC from cancelling election results and allows it to withhold polling only at specific centres where irregularities occur. So, they tied their hands.

The EC has also added 91AA, a new sub-section, to the RPO, which says the EC cannot take any actions between the announcement of unofficial results by returning officers and the publication of the gazette notification. As far as I know, the EC desires the power to withhold results of parts of or an entire constituency if there are any complaints and a subsequent probe. But, after the amendment, they have the power to withhold election results only for specific centres and not an entire constituency.

Is the amendment actually needed ahead of this important national election, when the last two elections – in 2014 and 2018 – already faced much questioning?

Besides what the RPO grants, the EC also has the inherent power to make decisions. I don't understand what the need was for such an amendment to the RPO. Since 2008, three Election Commissions performed their duties without facing any problems.

Many election experts point out that, according to the RPO, 'election' means the election of a member to a seat held under this order. Some say the definition of election in the RPO is not clear. What do you think?

This definition should be changed. An election means the entire period from the announcement of the election schedule to the announcement of the result.

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Column by Mahfuz Anam: Politics at crossroads

How much of an impact will such a curtailing of power have on polls, including the next general election?

The international spotlight is trained on our upcoming general election. Those who monitor the election process can see whether there is any intimidation from the government pre- and post-polls. If they find that the government has changed the law to get the election atmosphere to be in its favour, the monitors might cite it as an element of intimidation.

After this amendment, if the commission thinks that they will need to investigate and suspend the election due to violence or anything else, it will not be able to do so under the RPO. But the EC will still be able to investigate and suspend an election using its inherent power.

Of course, if it makes use of its inherent power (in line with Article 119 of the constitution), many might go to court against the EC's decision of suspending elections.

The Election Commission should be transparent to voters, who should be briefed about what has happened. The EC is not a ministry. Even if one person is punished, that should be presented as an example and a warning.

About six months away from the next general polls, is the EC on the right track?

It is known to all that people hardly have confidence in the EC. The incumbent commission has tried to earn people's confidence back. But they have been showing some weakness since the Gaibandha-5 by-polls. A candidate of the Barishal City Corporation election was beaten on polling day. But we did not see the suspension of polling at that centre, what was investigated, or if anyone was found responsible.

Even in connection with election irregularities during the Gaibandha-5 by-polls, many were found to be involved and their information had been forwarded to the concerned departments, but we don't know anything further. No action was taken against any candidates. It's like the EC is going one step forward and two steps back.

The Election Commission should be transparent to voters, who should be briefed about what has happened. The EC is not a ministry. Even if one person is punished, that should be presented as an example and a warning.

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Election commissioners often say that it is not their job to ensure all political parties' participation in the national polls. What do you think?

Legally, no. But morally, yes. The EC doesn't have a legal obligation to ensure that all parties participate in the elections. The only legal instrument that the EC has is that they can scrap the registration of a political party if they don't take part in two consecutive national polls.

Political parties are one of the major stakeholders in elections. The commission should have constant liaison with all political parties. If the EC wants to hold an inclusive election, it will need to make an all-out effort to ensure that.

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Don't be fooled by the RPO amendment

There are two parties in Bangladesh, Awami League and BNP, that have the strength to field formidable candidates in all 300 parliamentary seats.

Only sending out a letter that says when the EC will hold talks with a party is not enough. I believe election commissioners must maintain acquaintance with leaders of different political parties. This kind of personal liaison works. Therefore, they have a moral responsibility to try to hold unofficial talks with the parties.

But we don't see any such efforts, as the EC has taken a stance that it is not their responsibility to bring all political parties to the election.

What are the challenges for the EC in holding the next general polls in a free, fair, participatory, and acceptable manner?

Usually, holding a parliamentary election is a challenge. But this time it is more challenging, when the whole world is watching us and they all want a free and fair election in Bangladesh. Besides, people's confidence in elections and the EC is being eroded. The EC has to work hard. If an election is not participatory, it is neither free nor fair.

The ruling Awami League today nominated former ACC commissioner and freedom fighter Mohammed Shahabuddin as the party's presidential candidate.

An AL delegation, led by the party's General Secretary Obaidul Quader, submitted the nomination papers at the Election Commission this morning.

Quader, also the road transport and bridges minister, informed reporters about the development after submitting the papers.

The ruling party's nominee will be the next president of the country as no other political party which has representation in the parliament is going to propose any name for the presidential election, and the ruling party has a brute majority in the parliament.

Out of 350 parliamentary seats, the AL currently has 302, while main opposition Jatiya Party has 26. The Workers Party has four seats; Jatiya Samajtantrik Dal, Bikalpa Dhara Bangladesh and Gono Forum have two each; Bangladesh Tarikat Federation and Jatiya Party (Manju) have a single seat each; and three remaining seats are occupied by independents.

Shahabuddin was also with the delegation team. After the nomination was filed he said that he has no immediate reaction.

"Everything was done in line with Almightily Allah's will," he said.

The last time for submission of nominations is till 4:00pm today. If none other than Shahabuddin is nominated till then, the Election commission will be able to announce him as the president elect if his nomination papers are found to be valid following scrutiny of forms tomorrow, EC officails said.

The presidential election is scheduled for February 19, but it will take place only if there is more than one candidate.  

Although the post of the president is mostly ceremonial -- they are to act as per the advice of the prime minister, except when appointing the premier and the chief justice -- it takes on some significance during polls-time given his say in issuing directives to help the Election Commission function effectively.

According to section 5 (2) of the Representation of the People's Order, 1972, all executive authorities of the government shall assist the EC in the performance of its functions, and for this purpose, the president may, after consultation with the commission, issue such directions as they may deem necessary.

The tenure of Hamid, the longest serving president of the country, will expire on April 23, and according to the constitution, there is no scope for his re-election.

Article 50 (2) of the constitution reads that no person shall hold office as president for more than two terms, whether or not the terms are consecutive.

Hamid was appointed acting president of Bangladesh on March 14, 2013, while then president Zillur Rahman was in hospital in Singapore. Zillur died six days later.

Hamid was then elected unopposed as president on April 22, 2013, and was sworn into office two days later. On February 7, 2018, he was re-elected unopposed for a second term.

Chief Election Commissioner Kazi Habibul Awal today said if major political parties do not participate in the next national election, its legitimacy will "go down to zero".

During a press conference at his office this morning, the CEC also said that the political crisis was the biggest challenge to a free and fair election.   

"If the major political parties do not take part in the election there will be no crisis over legality, but legitimacy will go down to zero," he said.

He urged the "two big political parties" to hold talks to resolve the ongoing political crisis.

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Under strain, govt may go for inclusive polls

He also said it was not possible to ensure 100 percent free and fair elections, regardless of whether EVMs or ballot papers are used.

"But if the election was conducted using EVM it is safe," Habibul said.

There has been uncertainty about how participatory the next national election, slated for the end of this year or early 2024, will be as the BNP has been threatening to boycott the polls if it is held under the ruling Awami League government.

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Ensure inclusive national election

Since the latter half of last year, the party has been pushing their 10-point demand, which include holding the polls under a non-party caretaker government and the resignation of the AL government.

We are hardly surprised that there was no meaningful outcome of the dialogue arranged by the Election Commission (EC) with all the registered political parties in the country on Saturday. Almost a third of the parties invited, including the BNP, did not even attend the talks, which were arranged reportedly to apprise them of its preparations to hold the upcoming 12th parliamentary election. The commission decided to hold the dialogue at a time when the ongoing political crisis had taken a turn for the worse, and there were expectations that it would play a constructive role in addressing the key concerns raised by the major political parties. However, in the absence of any real attempt to tackle the root causes of the current political impasse, such a dialogue was bound to fail.

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Compromise, not violence, must be the way out

The EC scheduled the dialogue only three days after the BNP's botched rally, which descended into chaos and violence following clashes between the party members and police. Since the October 28 mayhem, law enforcement agencies have arrested at least 7,835 BNP leaders and activists around the country till November 4, including at least seven of its top leaders, according to a Prothom Alo report. Other leaders are in hiding to escape arrest. In this situation, did the EC really expect someone from the BNP to show up at the dialogue?

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All about fair and unfair elections

Besides BNP, 16 other parties boycotted the dialogue, seeing it as a futile exercise. Bangladesh Jasod released a statement explaining that it boycotted the dialogue as it would have no influence on ensuring a conducive environment for a free and fair election. Even a former election commissioner told this daily that the EC held the talks "just to show that they have called everybody once again and that they did not get support [from all political parties]." When a country is engulfed in such turmoil, these kinds of formulaic dialogues do little to boost the political parties' confidence. The EC should have anticipated that.

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Dialogue is not optional, it’s a must at this stage

What we really need right now is some meaningful actions from the major political parties to resolve the ongoing political stalemate. The election is less than three months away, and the two main political camps, Awami League and BNP, are showing no sign of compromise. If this continues, we are afraid the spate of political violence will continue till the election, and the situation will get even worse. Unfortunately, as the crackdown on opposition leaders intensifies across the country, the hope of a constructive dialogue between the parties now seems to be a far-off dream, thanks in part to the EC, which has thus far failed to create a level playing field and inspire confidence in its ability to steer the country through a free and fair election.

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