The choice between the unpalatable and disastrous
Elections are not mere rituals in democratic societies; they constitute the very essence of democracy. Any attempt to manipulate election is an attack on democracy. As the American statesman John Adams said, “We should be unfaithful to ourselves if we should ever lose sight of the danger to our liberties if anything partial or extraneous should infect the purity of our free, fair, virtuous and independent election.”
'Impure elections' not only undermine legitimacy of government but also deprive the citizens of their basic human rights. “The will of the people,” asserts the United Nations Declaration of Human Rights, “shall be the basis of the authority of government, this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or equivalent free voting procedures.”
Election is the link between legitimacy of political governance and liberty of human beings. Mere voting is not enough for election. Making them free, fair, independent, 'virtuous' and 'pure' continues to be a challenge to all democratic societies.
The origins of present electoral process in Bangladesh may be traced back to 1885 when local elections were held by the colonial rulers. Broadly speaking, there were ten major democratic elections at national level in Bangladesh (1919, 1935, 1946, 1954, 1970, 1991, 1996, 2001, and 2008) during the last 138 years and the rest suffered from varying degrees of manipulation. Electoral process in Bangladesh was tainted in two ways. First, there were non-democratic spells of governance (1958-71, 1975-81, 1982-90, and 2007-08) when the expediency of rulers rode roughshod over democratic norms. When military rulers ran political parties, rigged elections became inevitable. Such farcical elections destroyed the sanctity of electoral institutions.
Secondly, though there has been a long spell of responsible elected government since 1991, the ghost of non-democratic governments continue to haunt the nation. The elected governments do not hesitate to resort to all sorts of dirty tricks to influence the elections.
The demand for electoral reform started in the erstwhile East Pakistan as early as 1954. In line with the Westminster tradition; elections were held with the previously elected government in power (though its term expired). The United Front (where all major opposition parties including Awami League combined) in its celebrated twenty-one points demanded a proto-type caretaker government that would replace the elected incumbent government by the non-elected governor's rule. The demand was not accepted.
However, despite its best efforts the government in 1954 failed to manipulate the results for two reasons. First, the party in power was rejected so overwhelmingly (ruling party won 9 out of 300 seats) that any attempt to stem this avalanche was futile. Secondly, there were many conscientious public servants who refused to carry out the illegal orders of the government. Bangabandhu in his Unfinished Memoirs mentions how a Pakistani District Magistrate in Faridpur suffered because he refused to arrest Bangabandhu during election campaign.
However, since 1954 election engineering by the ruling parties became increasingly routine and blatant and there was rapid erosion in the neutrality of public servants. The Westminster model of continuing the outgoing government in power till the installation of newly elected government became increasingly untenable.
As a result, questions have been raised by scholars and observers about neutrality and fairness of all elections held in Bangladesh till 1991. In this environment, successive Election Commissions failed to protect their images as independent bodies.
According to competent observers, the first free and fair election in Bangladesh was held under an interim government which was an unelected government consisting of non-political persons. Ironically, the government which was elected in an independent election under the aegis of an interim government in 1991 failed to hold a credible election in 1996.
The popular fury against rigged elections in 1996 forced the government to introduce caretaker government system. The new system was accepted by both the parties as a reasonable solution for an otherwise intractable problem. Three independent elections were successfully held under the caretaker government.
Within the country, the new system was accepted as an effective social contract among the feuding parties in an environment of no- holds- barred confrontational politics. Outside the country, the caretaker government was hailed as a significant experiment in democracy. Human Development Report 2000 (p.6) described the caretaker system in Bangladesh as “an important advance in new democracy.”
Despite its apparent successes, the caretaker government system had three major weaknesses.
First, the constitutionality of an unelected caretaker system as a permanent feature of the Constitution is questionable though time-bound temporary (for example reservation of seats for women and affirmative action for the disadvantaged) departures from constitutional principles have been accepted by courts as legal.
Secondly, elected incumbent governments tried to manipulate incoming caretaker governments in two ways. The caretaker government is headed by the last retired Chief Justice at the time elections are announced. The incumbent governments started tinkering with appointment and retirement of the Chief Justices so that they can install a chief advisor of their own choice.
Such attempts compromised the independence of judiciary and tarnished the image of caretaker government.
Furthermore, elected governments politicised the bureaucracy by dismissing politically suspect bureaucrats (with 25 years or more service), neutralising politically unacceptable bureaucrats by making them OSDs, posting and promoting loyal officers to all crucial and sensitive posts, recruiting active party workers to civil service through various dubious means and reinstating all public servants dismissed by the rival government. Controversies arose whenever caretaker governments tried to rectify these abuses.
Thirdly, the last caretaker government (2007-08) drew its strength from the support of the armed forces and not from the Constitution. It lasted for about two years though legally its tenure cannot exceed more than three months. In the name of cleansing the administration, this caretaker government took emergency measures in gross violation of human rights.
However, the unconstitutional extension of caretaker government would not have been possible without the implicit support of parties who raised the demand for a fresh voter list with photo and ID card before election.
This demand was also blessed by judicial decisions. The fresh voter list with photo ID card became the sole justification for the otherwise unconstitutional extension of the term of caretaker government.
After the 2008 election, it became evident that though the caretaker government had been successful in delivering an acceptable election, there were urgent compulsions for reforming the existing caretaker system. In the meanwhile, the Supreme Court delivered a judgment declaring the caretaker system as unconstitutional.
However, the Court refused to declare the past caretaker governments as illegal. In the summary judgment, the court held that an appropriately modified caretaker system may continue for next two
elections. In the detailed judgment, all unelected governments were declared illegal making it difficult to reintroduce a non-party caretaker government.
However, on the ground of implementing the verdict of Supreme Court, the Government unilaterally abolished the caretaker government without consulting the opposition parties. The main arguments in favor of abolishing the caretaker government are as follows:
• Caretaker system is illegal and legally, there is no opportunity for returning to caretaker government.
• If other Westminster democracies can be run without caretaker government, there is no reason why caretaker system should be essential for Bangladesh. What is needed is the strengthening of the Election Commission.
The following arguments are put forward to refute the official arguments against caretaker government
• The nomenclature caretaker government is not important. What is needed during national election is an impartial or non-party government which is acceptable to all major parties. Law is not an insurmountable barrier to such a government. One option may be to revive the caretaker government in an appropriately amended form for next two terms. To avoid future legal difficulties such amendments may be finalised after consultation with the Supreme Court under Article 106 of the Constitution.
The second option could be the election of non-party Advisors by the outgoing Parliament (in the same way the President is elected) for running the government during election. This would involve amendment of the Constitution.
The third option could be an interim government with 5 (or an agreed number) members each from the government and the opposition MPs (the government MPs may be chosen by opposition and opposition MPs to be selected by the government party) and these ten MPs in turn may elect (in case of tie through lottery) one of them as prime minister. The implementation of this measure would not require any change in law. This is an illustrative but not an exhaustive list of options for a neutral or non-party government. These illustrative options suggest that if the parties agree to compromise, a legal solution could be easily found.
• Election commissions in Bangladesh could not hold a single credible election without the support of a non-party government. The system of checks and balance in Bangladesh constitutional system is tenuous. In similar democratic countries, there are checks and balance in the Executive. For example in India, there are two levels of government. Most of the personnel for managing national elections are drawn from the State. Very often the State Governments and Federal Governments may belong to different political parties. The excesses of State governments are held in check by the central government. If the state government becomes too much partisan, the Federal government may impose President's rule leaving the government to an unelected Governor and his unelected advisors which is similar to caretaker government. In Pakistan, the system of caretaker government has been incorporated in the Constitution and the new system has been accepted by the highest judiciary in Pakistan.
Finally, the Government in Bangladesh is highly centralised and the executive powers are concentrated in the hands of the prime minister. A partisan prime minister can influence the election very significantly.
• The contending political parties during last four decades had eroded neutrality of public servants. All important posts in civil service have become musical chairs for sycophants and opportunists. As a result; the image of civil servants has suffered irretrievably. A small example will illustrate the gravity of poor standing of public servants in Bangladesh. In India, staggered elections are held over a period of 6-8 weeks.
The ballot papers of early polls are kept in the custody of about 500 officers in sealed boxes without counting till the polls are over. There is hardly an instance of a complaint alleging tampering of the contents of ballot boxes in custody of public servants in India.
On the contrary, it will be difficult to find a single officer in Bangladesh who will be trusted by both parties for safekeeping of ballot boxes even for a single day. This is why all ballots in Bangladesh are counted in the polling centers immediately after closing of polls in the presence of the representatives of candidates.
• Strengthening of the Election Commission is not a viable option for minimising the election engineering by the incumbent government. Election Commission utilises the services of about half a million government employees. The Election Commission is not the appointing authority for these employees. Legally, only the appointing authority can take action after due enquiry (which may not be completed within a short election period) against delinquent officers on election duty. The public servants will, therefore, always be more amenable to control of incumbent government than to the Election Commission. Furthermore, if the incumbent government refuses to implement the directive of the Commission, there is no effective remedy. A non-party caretaker government is the best and natural ally of an independent Election Commission.
An analysis of past history shows that fair elections had been held with or without caretaker system. Elections held under incumbent government produced right results in provincial elections of 1954.
However, incumbent governments (like Ershad’s regime) also staged unacceptable election engineering.
Elections under caretaker government may not be always perfect. There is nothing in theory and practice to prove conclusively that the Westminster system of election would not at all work.
The real issue here is political and not legal. The litmus test of the “genuineness” of an election is not the success in declaring the winner according to the rules of the game but providing “losing parties and candidates with incentives to remain participants in the process” (Cheema, 2005:25). Electoral process breaks down whenever winners believe that they can perpetuate their rule though manipulation and the defeated parties lose hope of ever winning through the electoral process.
Loss of trust in genuineness of elections unleashes a vicious cycle of confrontation, violence and undemocratic activities. The boycott of election by major opposition parties under such circumstances will undermine the credibility of election at home and abroad.
The caretaker government alone cannot hold a free and fair election. The constitutional responsibility of holding a free and fair election in time lies with the Election Commission. The first prerequisite for an acceptable Election Commission is its independence.
Article 118(4) of the Constitution lays down: “The Election Commission shall be independent in the exercise of its functions and subject only to Constitution and any other law.” However, legal provision is not sufficient for its independence. Election Commission needs independent spirited leaders who have the ability and courage to uphold its neutrality.
In other words the selection of fair, independent and effective Election Commissioners is an essential precondition for the independence of the Election Commission.
Unfortunately, Election Commissioners under the present dispensation are handpicked by the ruling party and very often it is alleged that Election Commissions play a second fiddle to government. There had been persistent demand for a transparent procedure for selection of Election Commissioners. So far, no procedure has been formalised though a sort of selection committee appointed by the President was used recently. However, there are complaints of lack of transparency in the appointment process.
In the light of recent experience, the following procedure for selection of Election Commission may be considered:
• An Act of Parliament should lay down the qualifications of Election Commissioners in details and the procedure of appointment;
• An independent Selection Committee should be set up to recommend four candidates for each vacant post;
• There will be public hearing on the nominees in the Parliamentary Standing Committee relating to Election Commission;
• The Standing Committee will recommend two nominees for each post by a majority which must include at least one member from the opposition; and
• The President shall select Election Commissioners from the recommended panel of the Standing Committee.
The major steps in the holding of free, fair and independent elections involve the following:
Preparation of an accurate voter list
This was a major weakness of electoral process in Bangladesh till the last election. It is impossible to prepare an accurate voter list manually. According to NDI, the percentage of ghost voters in the 2006 consolidated voter list in Bangladesh was 13 percent. The last army-backed caretaker government in cooperation with UNDP has successfully implemented a project for preparation of a computer-based voter list with photo ID. As a result, the total number of voters has decreased from 93 million in 2006 to 81.03 million in 2008 -- an elimination of about 12 million phony voters. If the Commission updates the list continuously, the problems of ghost voters can be minimised.
Delimitation of the constituencies
The chances of gerrymandering have been reduced by giving this power to the Election Commission. So far, no complaint of partisanship of the Election Commission in this area has been raised.
Appointment of impartial Returning Officers (ROs) and Assistant Returning officers (AROs)
Elections are really conducted by ROs and AROs under the supervision of Election Commissions. Thus ROs and AROs play the most crucial role in holding elections.
Traditionally, Deputy Commissioners or persons connected with district administration are appointed ROs and AROs. They are the steel-frame of the Executive and are always at the beck and call of the incumbent government.
The appointment of district administration officials as ROs and AROs with a partisan interim government at the helm is not at all conducive to neutral election. An alternative could be to appoint officers of Election Commission to these posts. This is not feasible for several reasons.
First, they do not have the experience of coordinating the officers of other agencies and in most cases may not be able to provide the needed leadership.
Secondly, there are wide allegations that many officers in the Election Commission were recruited on the strength of their political connections.
A third option is to appoint judges as ROs. This will require the approval of the Supreme Court and judges will remain answerable to Supreme Court and not to the Election Commission.
They may also lack management experience which is essential for conducting elections.
Two measures may be taken to minimise this problem:
(a) The publication of a panel of likely ROs and AROs at least three months before election in the website of the Commission seeking comments of registered political parties and finalisation of the panel by the commission and requiring the Government to post district administration officers from the approved panel; and
(b) Hearing the complaints against any RO or ARO by the Commission and giving decisions within shortest possible time.
Selection of polling centres
The location of polling centres within strongholds of candidates may be a threat to a fair election. Sometimes, the candidates manipulate the site selection of polling centers in collusion with electoral officers. The preliminary list of polling centres should be published three months prior to election and the final list should be approved after hearing the objection of stakeholders.
Selection of impartial presiding and polling officers
There should be a mechanism to screen out undesirable polling and presiding officers.
Electronic screening of results prior to publication
One of the major weaknesses of National Elections is that results declared by Presiding officers of a polling centre are accepted by Election Commission without any scrutiny. This encourages capture of polling stations. First, fake ballot papers are stuffed in ballot boxes in collusion with polling and presiding officers.
This may be described as capture from inside. There are two characteristics in the results of such centres: very high percentage of voter turnout (more than 90% of total votes cast) and very large plurality in favor of one candidate.
Second, there is often capture from outside. In these instances, voters from opposition camp are not allowed to enter the centre at all by illegal means. In such centres, voter turnout is exceptionally low compared to previous elections or comparable centres in the same election. Such outliers could be easily identified by computers.
The Election Commission should withhold publication of results of polling centres which are clearly outliers from a statistical point of view, hold a special enquiry and if warranted may order repolling in these centres. Such measures would discourage blatant rigging.
General Law and order situation
The deterioration of law and order may interfere with a free, fair and independent election. Such designs to rig elections may be partly foiled by the vigilance of domestic and foreign observers. The Election Commission should actively encourage election observers, establish channels of communication with them and send mobile observer teams comprising retired and serving officers.
Quick disposal of petitions and appeals
The existing laws may be revamped to speed up disposal of appeals and petitions before Tribunals and Courts.
This is not essential for free, fair and independent elections. However, it minimises the risk of miscounting in highly contested elections and significantly lowers the time of ballot counting. This system will be counterproductive, if all parties are not satisfied about the security and reliability of the system. The implementation of such reforms will take time and should be introduced gradually.
There are widespread allegations that elections in Bangladesh are controlled by black money. The experience of other democratic countries suggest that campaign financing reforms cannot be imposed from above and they are not likely to succeed unless political parties discontinue the sale of party nominations. In other words, internal reforms of political parties must precede campaign financing from public exchequer.
The implementation of a successful campaign finance reform will take time.
The above analysis indicates that electoral process in Bangladesh is starkly bedeviled by a number of anomalies. None of these problems are, however, insoluble. Given strong political commitment to democratic process, most of the existing weaknesses in election system in Bangladesh could be partly or wholly fixed.
The real challenge to acceptable an election in Bangladesh is not constitutional or administrative but political. Electoral problems in Bangladesh were created by political alliances themselves, each surpassing the other in flagrant irregularities when in power. They politicised the bureaucracy, created caretaker government but at the same time tried to subvert it.
Two major political alliances in Bangladesh view national election as a zero sum game. They do not trust each other. In such an environment, no party is willing to compromise and both parties believe that they can snatch victory from the other party through confrontation.
To them compromise is untenable. Politicians in Bangladesh prefer to court a disastrous war of attrition which can at best culminate in a Pyrrhic victory and at worst in a tragedy of epic proportions. To these contending parties, compromise is unpalatable. What John Kenneth Galbraith said about politics is true in Bangladesh today, “Politics is not the art of possible. It consists in choosing between the disastrous and the unpalatable”. The politicians are inclined to the disastrous. Let us all pray for the victory of unpalatable.”
The writer is a former Secretary and Adviser to Caretaker government.