Constitutionality of army deployment in parliamentary elections

In his recent statement, the Chief Election Commissioner of Bangladesh 'personally believed army should be deployed in the upcoming parliamentary polls, but added the decision rested with the Election Commission'. In response, Honourable Minister Quader said 'the Election Commission has no jurisdiction to deploy army in the general election … Rather, the government will take steps in this regard realising the necessity if the Commission wanted army deployment' (The Daily Star, 9 April 2018, emphasis added). This competing positions of the Election Commission (EC) and the government are not new but occurred in the past. The BNP-Jamat coalition government refused to deploy army in 2003-2004 elections and the Awami League government in the Narayangonj City Corporation election in 2011 despite the EC requests surmising the possibility of abuse of political power for vote riggings. It appears premature to predict how the situation that would possibly prevail at the time of the forthcoming parliamentary elections in 2019. So, this brief comment is all about the constitutionality of army deployment in the general elections.

It is undeniable that profound abuse of political power intervened and interrupted the process of free and fair elections in Bangladesh since the state-managed elections held under the military regimes, sometimes with democratic outfits. It was these power-sponsored vote riggings that necessitated the introduction of the caretaker government system in 1996, which has been held unconstitutional by the apex court. In the absence of the caretaker government and in the best interest of free and fair election, the incumbent government must provide a reliable mechanism for free and fair elections. And the deployment of the army to combat election riggings may well be one of the viable deterrents to ensure free and fair elections.

The most palatable mechanism for free and fair elections in a democracy is to constitute an EC, which must be strong, effective, and absolutely independent of the government in holding and conduction all national elections. Indeed, this most popular election mechanism, like other democratic countries, is provided in Part VII of the Constitution of Bangladesh. It is a statutory body with constitutionally entrenched authority to perform its election-related functions. It 'shall be independent in the exercise of its functions', particularly 'the conduct of such elections … in accordance with the Constitution and any other law' (Articles 118:4 and 119:1). The two subsequent sections of the Constitution confer on the EC substantive independence in holding and conducting all election affairs totally free from any involvement of the government. The President shall, upon request from the EC, 'make available to it such staff as may be necessary for the discharge of its functions' (Article120). The expression 'shall' instead of 'may' is indicative of the constitutional spirit to rule out any scope for discretion on the part of the President in assisting the EC in its bid to achieve free and fair elections. Similarly, it is the constitutionally imposed duty on the government to fully assist the EC in the discharge of its functions (Article126).

After the abolition of the caretaker government, the incumbent government publicly pledged to make the EC strong, effective, and totally independent in administering national elections. Minister Quader is correct by maintaining that the EC has no constitutional power to deploy army in the general elections as neither the Constitution nor any other law contains such a provision. But since the issue has risen, however hypothetical may now be, if the existing EC would tender a request to the government, specifically to the Defence Ministry, for army deployment in the upcoming parliamentary polls, according to Minister Quader 'the government will take step realising the necessity'. Article 126 of the Constitution imposes an unconditional duty on the government to assist the EC and this assumption of power to assess the necessity of army deployment by the government amounts to sharing the decision-making in the election affairs, which are the exclusive prerogatives of the EC.

The assessment of the gravity of the election atmosphere warranting army deployment or not should be left to the province of the EC according to the Constitution. Parting this power of the EC by the government would potentially defy the constitutional venture of achieving democratically elected government through free and fair elections. Moreover, if the present government contests the forthcoming parliamentary elections and exercises its 'realising the necessity' of army deployment in response to a request by the EC, the government may well be acting as a judge of its own cause. Should this eventuate, it would cast doubts in many minds about the government commitment to render the EC strong and independent, which is so badly needed for free and fair elections in Bangladesh.

In her 'Jail Killing Day' speech published in The Daily Star on 4 November 2011, the current Prime Minister referred to Article126 of the Constitution and claimed that the army deployment was not necessary in Narayangonj, that the 'Constitution [was] not violated', and that 'the government would provide executive assistance to the EC as and when required', somewhat a new addition to Article 126, not different from Minister Quader's 'realising the necessity'. As the Narayangonj election turned out to be, the Prime Minister was right.  It was an exemplary free and fair election without troop deployment, a grand success story of the EC. But this success is not a guarantee for untainted elections in the future. The last parliamentary elections were marked by unprecedented violence that solicited national and international attention and resuscitated the debates over holding clean elections in Bangladesh, which the government must not lose sight of in the interest of democracy.

The Part VII of the Constitution is exclusively devoted to the Elections and EC, being the sole authority of administering national elections. Other arms of the government, such as the President and executive government are brought in this Part with the expressly imposed duty to assist the EC in the exercise of its functions. This is a manifestation of the principle of the separation of power. Article 126 imposes this duty on the government to render assistance if so requested by the EC. It does not contain the clause 'realising the necessity' by the government. Even for the sake of argument and in fairness to Minister Quader, if it is conceded that such a clause exists pertaining to the assessment of the election environment, it would absolutely be within the constitutional power of the EC to determine 'the necessity' of troop deployment devoid of any government involvement whatsoever. If the government determines such necessity, the independence of the EC in its election-related decision-making is open to question.

The Minister's argument that there is no history of army deployment in the national elections cannot be a justification for refusal to deploy despite the EC's request but a defiance of a constitutional duty of the government. The past examples of defiance by the BNP-Jamat government in 2003-2004 and the Awami League government in 2011 did not cure but multiplied defiance and created precedents beyond the authorisation of the Constitution. As such, these precedents cannot be relied upon to ignore yet another call by the EC should it eventuate in response to circumstances surrounding the upcoming general elections .The government must support the EC to function independently and performs its constitutional duty under Article 126 in good faith. It is this adherence to the constitutionalism that would be rewarding in defusing political demands for the restoration of the caretaker government or similar other unconstitutional mechanisms for free and fair elections. It would ultimately contribute to the progressive development of the EC as a permanent constitutional institution for holding free and fair elections.

The writer is Professor of Law and Director of Higher Degree Research, Macquarie University, Sydney, Australia.