As you know, members of the armed forces were deployed on December 24 to help maintain law and order during the election. What's your view on that?
Military deployment is a common phenomenon ahead of national elections in Bangladesh. Even during the 2014 election, the army was put on IS (internal security) duty. The purpose of such deployment is to provide security and help conduct the election. That being said, I think the army's power has been limited this time by the requirement that they would have to act in line with the CrPC (Code of Criminal Procedure)—“in aid of civil power.” What does that entail? As far as I understand, among other things, it means that if an executive magistrate feels that a situation is getting out of hand, he may employ the army to restore order. But under the CrPC, without a magistrate's instruction, the army cannot make an intervention, arrest or put anyone in custody. Which means, a magistrate must always accompany a troop, big or small, for the latter to intervene.
There is another provision that says that if an emergency situation arises, say, if the army is attacked, and there is no magistrate around to authorise action, a commissioned army officer may initiate action but he must later appeal, in writing, for retrospective authorisation from the magistrate. However, “in aid of civil power” means that the army will act to “disperse unlawful assembly” if its assistance is sought. But how would you decide if an assembly is “unlawful”? This condition suffers from vagueness. I think to prevent “unlawful” assemblies, you will have to ban any gathering of 3-4 people, say, around a polling centre but that will hardly qualify as normal. Plus, for the army to respond to a situation, taking action after receiving permission from the magistrate and acting on its own initiative as soon as the situation unfolds are not the same thing.
The army was deployed both during the 2001 and 2008 elections. Do you see any difference between those elections and this election in terms of the power that the army can exercise?
A gulf of difference, actually. For example, during those elections, in the definition of law enforcement agency in the RPO (Representation of the People Order), the army was mentioned first, before other forces such as the police. Which means that the army could take immediate action on its own initiative in case of any election-related offences described in the RPO without needing permission from the magistrate. The army could do what the police can in such situations, for example, making arrests in case of an attack on a procession or preventing violation of any electoral code of conduct. Any army officer, whether commissioned or not, could authorise action. The advantage of this arrangement was that the EC could, directly, provide guidelines to the army and the army would act accordingly. Now it will have to act “in aid of civil power”, pursuant to the instructions of the magistrate.
But according to the home ministry's circular about the deployment of the armed forces, the army will "extend all-out support" to the Election Commission for the sake of holding a free and fair election.
That sounds fine on paper. In fact, the whole purpose of deploying the army is to assist the Election Commission to conduct the election. But has the EC released any circular of its own outlining how it wants the army to be used? Does it have any specific guideline? As far as I know, the EC has produced no such circular yet. The important thing for us to keep in mind is, the army was deployed under the CrPC and so it must act in line with it. The CrpC is the guiding principle here. Despite what anyone says or promises us, eventually it all comes down to what the Code allows or not.
So you think there are complications?
Yes, there appear to be some complications. But this is what I think, and others may have a different opinion. I think the EC should have a guideline for specific tasks and specific days—before, during and after the election. Let me give you an example. During the 2008 election, army deployment was guided by the RPO, and even then we had provided specific instructions to each of the forces—police, Ansar, BGB, RAB and of course the army—with the conclusion that whosoever is needed, or nearer, at the time of an emergency situation, would be called in to deal with it. Even the Presiding Officer was given the authority to call in the army if needed; it was possible because of the RPO, which is the not the case now.
The deployment of the army has created expectations in the minds of the general people. They expect that there will be no violence. But what can be done if, say, the army is in one area and a violent incident takes place in another area? The army has its own command channel. It functions through that command channel. But when they are asked to assist the civil administration, despite their internal command channel, they have to readjust to the former's priorities and expectations.
What would be your suggestions for the army to play an effective role during the election?
I think the EC should, on a priority basis, release its circular in this regard with specific tasks set forth for the army for different phases of the election. It can also, under the RPO, grant magisterial powers to its own officers which, I must stress, are to be used only for the purposes specified under the sections of the RPO dealing with that power. That may be done after discussion with the home ministry but I don't know if there is time for that now. In the absence of a circular by the EC, we don't know what particular duties the EC expects the army to perform or their plans of execution.
I would like to highlight one point here: the public have a lot of expectations from the army, primarily because it is a disciplined force and also because it is among the first to respond in case of any disaster. People feel a strong affinity with it. They believe the army will not play a partisan role or work in anyone's favour and that it will act in light of its code of ethics and the law. Because of these reasons, I would say that people's expectations are high, very high.
This is a translated excerpt of an interview in Bangla originally aired on the website of The Daily Star on December 25.