The challenge before the Election Commission
During the last two decades parliamentary elections have assumed significant dimensions in Bangladesh. They have been notably different (except the controversial 6th parliamentary elections held on February 15, 1996) from those of the past in substance and quality.
All these elections, beginning with the elections for the 5th parliament, happened to be held during the tenure of either an interim (in the case of 5th parliamentary elections) or caretaker government (in the case of 7th, 8th and 9th parliamentary elections).
The Election Commission (EC) has earned acclamation both nationally and internationally for holding free and fair elections. Throughout this period there has been a remarkable surge of interest among the civil society in the electoral practices, management and reforms. The paramount importance of free and fair elections and of the EC as a vital institution to ensure the integrity of the electoral process has been emphatically recognised. This recognition accounts for a host of measures undertaken during the last two decades to plug loopholes in the relevant laws and rules and to strengthen the capacity and authority of the EC.
It may not be inappropriate to highlight briefly some key reforms and initiatives since 1991 to streamline the electoral system. It must be mentioned in particular of the country's leading think-tank, the Centre for Policy Dialogue (CPD), NGOs (specially FEMA and Shujon), a group of eight former civil servants led by Md. Matiul Islam and eminent researchers who provided valuable inputs to the Election Commission on electoral reforms on various occasions.
In 1991 before the 5th parliamentary elections, an important amendment was made of the Representation of the People Order, 1972 (RPO) to provide for the submission of the statement of assets, liabilities and sources of income by candidates. A landmark law was also enacted to ensure discipline and control of all categories of election officials including security and deputed personnel. This law is known as Act xiii of 1991. Subsequent to the elections, a project was launched to prepare voter identity cards to prevent fraudulent voting.
During my tenure, before the 7th parliamentary elections (on June 12, 1996), we hammered out, for the first time, an election code of conduct in consultation with political parties and promulgated it in the shape of rules with provisions for punishment for infringement.
After the general elections we addressed the question of electoral reforms in the light of our experience with the 7th parliamentary elections, particularly on some crucial issues like registration of political parties, regulation of election expenditure, regulation of election campaign, cancellation of candidature etc. We issued a questionnaire on electoral reforms to various political parties, NGOs and the media. I recall the admirable pioneering work of FEMA, organising a series of workshops with participants from political parties and the civil society.
A number of recommendations were forwarded by the EC to the Ministry of Law as well as the Law Commission. In 2001 prior to the general elections the CPD appointed a task force on election and came up with some excellent recommendations. During the tenure of my immediate successor, RPO was amended to provide for registration of political parties, albeit optionally, with entitlement to reservation of election symbols. Legal cover was provided to election observers to observe polls in accordance with prescribed guidelines. In 2005 the CPD again formed a strong task force on the democratic process and presented finally a fresh package of valuable, well-thought-out recommendations on electoral issues. In 2007 a group of eight former civil servants headed by Mr. Md. Matiul Islam also worked seriously on their own on electoral reforms.
The group's full report appeared in The Daily Star on June 1, 2007. The deliberations of both CPD and the former civil servants' group were extensive, covering a wide range of issues from the independence of the EC to the strengthening of the Electoral Training Institute. I am sure the Election Commission found these two reports immensely useful, while formulating its own recommendations for electoral reforms. The role of the last caretaker government in pushing through these reforms was understanding, bold and dispassionate. During its term a number of significant reforms in the electoral system were carried out. To underscore the independence of the EC, its secretariat was detached from the Office of the Prime Minister (PMO) by amending the Rules of Business. To ensure the accountability of political parties, provisions were made in the law (RPO) for the mandatory registration of political parties for the purpose of participation in election.
I believe this has been a landmark piece of legislation. Registration has been made contingent upon the fulfilment of certain prescribed conditions including the submission of a copy of the applicant party's constitution, statements of bank accounts and sources of fund. A registered party is also required under the rules to submit an audited financial report to the commission every year. A new provision was made in the RPO (Article 91E) for punishment to the extent of cancellation of candidature on the grounds of serious illegal activity or flagrant violation of the code of conduct. Arrangements were made with the army for the preparation of national identity cards with photographs and voter data base.
All these reformatory measures were geared towards one objective and that was to pave the way for free and fair elections. It must be acknowledged that these reforms were possible largely because of the active support of the prevailing interim or caretaker government having no political stake. There is no reason to harbour the notion that there is no longer any need for further reforms. It has to be recognised that there are still certain areas which need to be further addressed for the sake of qualitative improvement. Reforms are a continuous process. They are dictated by the needs of time. What is not considered necessary at a particular point of time may turn out to be imperative at another time in different circumstances.
There is no doubt that the Election Commission now is better armed than ever - equipped with better ammunition to face the inimical forces and perform its task. Obviously, the expectations of the people are high. The EC is now in full control of its secretariat, independent of the PMO or any other ministry of the government. It enjoys distinct freedom to spend money from its budget without any reference to the Ministry of Finance.
The EC has now its own manpower up to the upazila level. Political parties willing to participate in election are now required to be registered. Registration may be liable to cancellation on certain grounds including violation of some specific provisions in the concerned party's constitution. National identity cards with photographs are now in place to forestall fake voters. Tougher punitive measures including cancellation of candidature are now at the disposal of the EC for gross violation of the code of conduct during the election campaign.
More than ever, the people now expect the Election Commission to fulfil its constitutional obligations. People look forward to certain things. They expect that the EC should act neutrally and independently. Its neutrality and independence ought to be visible and perceptible through its actions.
The EC should be in dialogue with political parties including the opposition on major electoral issues and earn their confidence. It should be transparent in its decision-making process and accessible to the media. The Election Commission should have an updated, reasonably flawless register of voters, which provides a sound basis for organisation of free and fair elections.
People expect that they, as registered voters, are able to cast their votes without any interference or obstruction for the candidates of their choice. Disadvantaged members of the community -- women and minority -- should be able to go safely to their polling stations to vote. People are keen to see that election officials are not susceptible to influences from any quarters and give the best account of themselves in discharging their solemn duties. They expect that the political parties and candidates follow the code of conduct rigorously and the Election Commission is not niggardly in awarding suitable punishments to recalcitrant candidates, including cancellation of candidature in deserving cases.
The EC should maintain a 'level playing field' for all contending political parties, meaning that election rules and regulations as well as the freedom to campaign, including access to the state-owned electronic media should apply equally to all participating political parties. The Election Commission should address the maintenance of law and order to preserve peace and to forestall corrupt practices and launch a massive voter education programme for enthusiastic participation of the people in the election.
To ensure a free and fair election -- a responsibility the Constitution has bestowed on the Election Commission -- is not an easy task in reality particularly in our socio-political context. The organisation of such an election calls for not only independence and authority of the EC, but also foresight, regular interactions with political parties, training and motivation of election officials, detailed careful planning and close monitoring of the time-bound action plan. It becomes a veritable disadvantage for the election management body if there is a crisis of confidence in the body itself.
During the last two decades there have been as many as seven election commissions led by Justice M.A. Rouf, Justice A.K.M. Sadeque, Mohammad Abu Hena, M.A. Syed, Justice M.A. Aziz, Dr. A.T.M. Shamsul Huda and Kazi Rakib Uddin Ahmed. Of the seven election commissions, only two were constituted during the caretaker government -- the ECs led by me and Dr. Huda. Although the present EC was appointed during the incumbent government, it enjoys a distinct status.
For the first time in our country's history, the election commissioners including the CEC have been selected through a search committee appointed by the president. If past records and antecedents are any guide, we have ardent hopes that the present EC headed by a seasoned, well-reputed former civil servant will squarely meet the challenges that lie ahead of them.
The main challenge of the EC arises from the Fifteenth Amendment of the Constitution. This momentous amendment has dispensed with the system of non-party caretaker government by omitting chapter II A (Articles 58B, 58C, 58D and 58E) and restored Article 123 (3) as it existed originally in the 1972 constitution through substitution. Article 123(3), now back in its entirety, reads as follows:
"(3) A general election of members of Parliament shall be held --
(a) in the case of a dissolution by reason of the expiration of its term, within the period of ninety days preceding such dissolution; and
(b) in the case of a dissolution otherwise than by reason of such expiration, within ninety days after such dissolution:
Provided that the persons elected at a general election under sub-clause (a) shall not assume office as members of parliament except after the expiration of the term referred to therein."
The implications of the Fifteenth Amendment are obvious. By virtue of this amendment, the next general election, due to be held before January 24, 2014 (the first session of the present Parliament was held on January 25, 2009) is now required to be held during the term of the incumbent government. This would apparently necessitate careful deliberations and well-considered changes in the election organising strategy. Whether general elections in our country should still be held under a caretaker or interim government is another matter.
As long as the present constitutional provisions remain in tact, the Election Commission has no other option than to act in accordance with the provisions of the constitution. The EC is a constitutional body and all its members enter upon the office after subscribing an oath to 'preserve, protect and defend the constitution.' The Election Commission is thus obliged to remain poised to organise the next parliamentary elections in the face of all odds and obstacles historically associated with elections under a ruling party in our country. The conduct of the party government during elections has hardly been democratic and healthy in our history.
The party in power has often tried to reap the benefits of office and has been seen to adopt both visible and invisible measures brought to bear upon the elections. Defiance of the code of conduct has been a common phenomenon. The playing field during the period of campaign has gone awry. Sometimes efforts have even been made to manipulate the results through field officials, responsible for conducting elections, who were mostly government functionaries. The very fact that a contending political party is in office has also a psychological edge.
The Election Commission has to keep the worst scenario in mind and develop its strategy to neutralise the influence of the party in power. They will have to face the challenge with grit and determination. The following measurers may perhaps pay dividends in this respect. With the announcement of the election schedule, there should be wholesale change of DCs, SPs, UNOs and OCs in particular throughout the country. Objections even after such a massive change should also be duly addressed. Now that the EC has its own trained and professional manpower at regional, district and upazila levels, it may be prudent to consider appointing its own officers as Returning and Asst Returning Officers (ROs and AROs) to the extent possible. The local administration's responsibility would be to provide necessary administrative and law and order support and assistance to them.
It is worth mentioning that EC's own officials acted as ROs and AROs for parliamentary by-elections, city corporation elections (Comilla, Chittagong, Narayanganj and Rangpur) and for a large number of upazila, pourashava and Union Parishad elections during the term of the present government. These elections have been conducted, by and large, fairly and efficiently. There is thus a strong case for EC's own officers to be appointed as ROs and AROs as far as possible for the next general elections. Intensive professional and motivational training will have to be organised for all officers directly connected with elections -- from DCs, SPs, regional and district election officers to UNOs, upazila election officers, OCs, presiding and polling officers.
The code of conduct will have to be further toughened to meet the anticipated needs of elections during the term of a party government. For instance, the imposition of a total embargo may be considered on electioneering by government ministers including State and Deputy Ministers and persons of the equivalent rank in any constituency during the pre-poll period as defined in the code of conduct rules. Embargo may similarly be imposed on the commitment of specific development projects by government ministers in any constituency during this period.
The EC should not only express its determination to deal out heavy punishment for the violation of the code, but also be fully prepared to apply the punitive provisions in suitable cases. Its resolute will to enforce the code will have to be demonstrated. It will also be imperative to select polling officials and polling centres with utmost care well ahead and deal with objections, if any, in time to inspire confidence of all stakeholders in the election.
General elections are of critical importance for a democratic nation. Enthusiastic participation of major political parties makes such elections worthwhile and meaningful. It is not enough that the Election Commission remains ready with all preparations and safeguards. The importance of the government's role in making the election participatory cannot be overestimated.
The writer is a former Chief Election Commissioner.