Holding election commission accountable under consideration

The Election System Reform Commission is considering how to hold the election commission (EC) accountable if it becomes involved in electoral crimes.

The commission is contemplating proposing legal provisions that would allow action to be taken against the EC after an investigation in such cases.

Sources within the reform commission confirmed this.

The election commission is constitutionally an independent body, with the president appointing the chief election commissioner and other commissioners.

Those involved in elections state that it must be considered whether establishing accountability could undermine the EC's independence. Some, however, argue that a system of accountability is necessary to prevent any commission from getting away with fraudulent elections in the future.

Constitutionally, the election commission is responsible for conducting national parliamentary and presidential elections. Under its direction and supervision, returning officers carry out the actual elections for parliamentary seats. National election-related laws, such as the Representation of the People Order (RPO), the Election Officials (Special Provisions) Act, and relevant provisions, include penalties for election officers, candidates, or their supporters if they engage in any criminal activities. These individuals are accountable to the EC. However, there is no clear provision for holding the EC accountable if it is involved in criminal activities.

The existing constitution provides for the removal of election commissioners. It states that no election commissioner can be removed except in the same manner and for the same reasons as a Supreme Court judge. They can currently be removed through the Supreme Judicial Council, a power that was once vested in parliament.

According to sources from the Election System Reform Commission, based on the experiences of the last three national elections, they believe there should be a clear place for holding the EC accountable, even though it is a constitutional body. The three controversial elections—the unilateral 2014 11th Parliamentary election, the "nighttime vote" of 2018, and the disputed elections of January this year—were managed by three election commissions.

These commissions took an oath to conduct free, fair, and neutral elections but violated this oath by holding controversial elections. Among them, the commission led by KM Nurul Huda faced serious allegations of misconduct and financial irregularities in national elections, prompting public calls for an investigation and the formation of a Supreme Judicial Council. However, no action has been taken against the commissions responsible for these controversial elections.

The reform commission believes that a provision may be added to the RPO to make election commissioners accountable for electoral crimes, allowing for investigation and action if serious allegations arise. The commission is deliberating on the procedure and process for such accountability, though no final decision has been made.

When asked about this, Badiul Alam Majumdar, the head of the Election System Reform Commission, told Prothom Alo, "In a democratic country, no one is above accountability. Constitutionally responsible individuals must uphold the constitution. If they violate their oath, they should be held accountable."

On 3 October, the interim government formed the Election System Reform Commission, led by Badiul Alam, to make recommendations for reform. The commission has been consulting with stakeholders, gathering public opinions through digital platforms, and collecting written proposals from political parties. They have also reviewed all relevant electoral laws. The final report is still under preparation, and it is expected to be submitted to the government by 31 December, although it has not yet been finalized.
Reactions to the proposal

The BNP has not yet commented on the reform commission's proposal to hold the EC accountable. Party Standing Committee member Amir Khasru Mahmud Chowdhury told Prothom Alo that they would comment after reviewing the proposal once it is presented.

However, Zunayed Saki, a leader of the Ganatantra Mancha and chief coordinator of the Ganosamhati Andolon, believes that there should be a system to hold the election commission accountable. He told Prothom Alo, "Election commissions have been allowed to continue despite holding fake, fraudulent, and disenfranchising elections. To prevent such commissions from escaping accountability in the future, there should be a mechanism to hold the EC accountable, and we support such a system."

In addition to holding the election commission accountable, there is also consideration of proposals to expand its powers. The reform commission believes that the current powers given to the EC are adequate for ensuring fair elections if applied properly. However, some issues will be clarified further in the RPO. The RPO currently includes certain powers, but the High Court has also ruled that the EC has "inherent powers" outside of those specifically mentioned in the law.

There is a proposal to include these inherent powers in the legal framework. Under the commission led by Kazi Habibul Awal, an amendment to the RPO curtailed the EC's powers to cancel elections, limiting them to just announcing election cancellations on the day of voting. The earlier version of the law allowed the EC to cancel elections at any time after announcing the schedule if the environment was deemed unfavorable. There are now proposals to return to the previous state of affairs.

Additionally, under current law, complaints related to certain electoral offences must be filed within six months of the election. The reform commission is considering proposals to extend or remove this time limit.

Former election commissioner and advisor to the interim government's ministry of shipping, and ministry of labour and employment, M Sakhawat Hossain, told Prothom Alo, "It is not that there is absolutely no place for holding the EC accountable. The EC is constitutionally independent, and the Supreme Court is the guardian of the constitution. With a few exceptions, anyone can challenge EC decisions in the higher court."

"Whether the Election System Reform Commission is directly considering provisions for accountability is unclear. However, if a committee is created to establish accountability, we must also consider whether it would undermine the EC’s ability to work independently," he added.