'I have serious doubt whether they have done it in good faith'

A.T.M. Shamsul Huda

A.T.M. Shamsul Huda, former Chief Election Commissioner talked to A.B.M. Shamsud Doza of The Daily Star on Election Commission's revised proposal on the amendments to electoral laws.

He Daily Star (TDS): What was the background of adopting Article 91 (E) in 2008?
A.T.M. Shamsul Huda (ASH): Article 91 (E) must be seen in the overall context of strengthening the Election Commission (EC). Prior to reforms in 2008, EC had been suffering from lack of adequate power to control and contain mischief mongering by delinquent candidates and political parties. Though there is a provision for appeal against rejection there is no provision for appeal against acceptance. Returning officers scrutinise the candidature of all candidates and then accept or reject nominations. We found that performance of the returning officers were not very satisfactory. There were many cases of manipulation and misuse of power. And EC did not have any instrument to rectify these wrongs. After the election, these officers go back to their departments. Only thing EC can do is to frame charge against them and send it to administrative departments. But they do not even let us know what action they take against those officers. That's why we changed the law and said we will hear appeal against rejection and we will also hear appeal against acceptance. We found the benefit of this Article in the 2008 election. Many nominations accepted by returning officers were rejected by EC after receiving complaint against them.
Secondly, during election time most of the control lies in the hand of returning officers. If there is any disturbance in any of the polling stations it is the returning officer who is supposed to take action. Unfortunately, the political parties, particularly ruling party, always put the blame on EC. But EC did not have sufficient wherewithal to contain these kind of irregularities by candidates. It is important for EC to have some kind of authority to control irregularities and in that spirit Article 91(E) provision was adopted.
We strengthened the EC with the power to cancel or postpone any election. We used this provision liberally in subsequent elections. When we found any irregularity, we could take immediate action. So, the argument that since returning officers are there why EC has to assume more power is very weak.
Interestingly enough, in 2000 there was an attempt to incorporate Article 91(E). It was almost incorporated but, at the last minute, this provision was dropped due to objection of the ruling party.
Again in 2008, when we proposed Article 91 (E) there was vehement opposition from the BNP. They set four conditions for participation in 2008 election. One of the conditions was scrapping the provision 91(E). But we stuck to our proposal and they finally acquiesced to our requirement.
We repeatedly assured political parties that there was no scope for arbitrary use of power. There has to be a written complaint that something is happening, either by a candidate or his agent, and then the Commission will conduct proper inquiry about that complaint and will take any decision only after that.
The present CEC is saying that this provision was not applied in 2008; it is only on paper. If there is a certain thing in the statute book and there is no use for it then why keep it? I consider this a lame argument.
It so happened that in the 2008 election there was no occasion to use it. However, we firmly believe that its presence worked as a deterrent for all the mischief mongers. They knew that there was an instrument in the hands of EC and if they tried to do anything illegal, EC might use it. That is a preventive measure. That is the beauty of this section. We do not need to use it at the slightest provocation. We will use it in extreme cases. When all other means fail, and the credibility of an election is at stake, we will take recourse to this provision. That is the spirit of Article 91(E).
Interestingly, now BNP is maintaining total silence about this issue. There is no demand from their side. I do not understand why EC is trying to drop Article 91(E). In 2008, Awami League also did not raise any objection against this provision.
This was a hard-earned gain for us. To convince all the political parties was so tough. But now EC is voluntarily giving away this achievement. This is simply crazy. I have serious doubts whether they have done it in good faith.
Article 91 (E) is a great hindrance for any political party that has a plan for large-scale rigging or fraud, because people will ask EC to use its authority which is gained through Article 91 (E). So they are trying to drop this proposal to make the EC a toothless tiger.
TDS: CEC has said that Article 91 (E) is in conflict with Article 19.What do you think?
ASH: I do not find any conflict between the provision 19 (E) and 19. The EC did not give any clear reason as to why it is conflicting. I think they confused Article 19 with Article 17. CEC said that if only one candidate was left in the field, asking him to wait for resubmission of nomination would increase his or her cost. At the nomination stage, no candidate is supposed to incur any expenditure because he is not authorised officially to start his campaign. Therefore, this question does not arise here.
Secondly, under the amended Representation of People Order (RPO), a candidate is not sure whether he will get party's nomination because it usually happens that several candidates from the same party submit nominations and finally the party selects one of them. So as long you do not get final approval how do you incur expenditure?
TDS: In your time you had drafted the proposal aiming to make it mandatory for the cabinet division, ministries of home, public administration affairs, and LGRD to consult with the EC before taking any decision related to elections during the parliamentary polls. But the current EC dropped this proposal when it sent back the amendment proposals to the law ministry last week. What would you say to that?
ASH: We asked four important ministries to inform us of their decisions that have direct bearing on election outcomes. For example if government wants to construct a road in a particular locality that has direct bearing on election performance of their candidates they have to consult with EC. In our time, when a candidate in Naryanganj planned to inaugurate a bridge and the concerned ministry gave him positive nod we had to stop him.
EC will also restrain government bodies from creating any hindrance for any candidate after his candidature is finalised. In the Gazipur City Corporation election what the National Board of Revenue did was illegal. Once candidature is finalised, the candidate is our property, you cannot disturb him at that stage with a claim that he did not submit statements to NBR and so on. They should have done this before the finalisation of his nomination or they have to wait until the end of election.