How to remove obstacles to credible elections?
After discussions with the prime minister, a few ministers, political parties, the election commission, diplomats and representatives of the civil society, the pre-election assessment team comprising of representatives of the International Republican Institute (IRI) and the National Democratic Institute (NDI) that came to Bangladesh on a five-day mission, published a brief report. The report identified several obstacles in the path to a free, fair and credible 12th parliament election and also made some recommendations. One of the main recommendations were forholding dialogue to remove ‘genuine obstacles to electoral integrity’ and inclusive politics. Given the failed and fraudulent elections of 2014 and 2018, the report noted, ‘Bangladesh is at a crossroads and the upcoming elections provide the litmus test of the country’s commitment to a democratic, participatory, and competitive political process.’
In order to remove the obstacles to electoral integrity and competitive political process, the reasons behind these obstacles must first be accurately identified.
Let’s come to creating an environment conducive to all parties’ joining in a meaningful political competition manifested in their participating in the upcoming election. The biggest obstacle to a competitive election at present is the 15thamendment to the constitution that was passed unilaterally and in a totally unconstitutional manner on 30 June 2011.
Although our constitution represents the will of the people, the people were not at all involved in the passage of the 15th amendment. The opposition political partieshad no role in its passage. There was hardly any debate in the parliament when it was passed. Even the unanimous recommendations of a special parliamentary committee to amend the constitution,keeping the caretaker system with three months’ time limit, was ignored in enacting the 15th amendment. Note that the special parliamentary committee’s unanimous recommendations were based on the opinion of 104 eminent citizens, including experts, and the amicus curies, almost all of whom were in favour of keeping the non-party caretaker system.
The enactment of the 15th amendment also defied the divided, short order pronounced by the Appellate Division of the Bangladesh Supreme Court on May 10, 2011, which declared the 13th amendment incorporating the caretaker system prospectively unconstitutional after the 10th and 11thparliament elections. The Court made this decision to keep the caretaker system alive for the next two electionon the age-old principles of doctrine of necessity and safety of the state and safety of the people are the supreme law.
As already noted, before passing the 15th amendment, the prime minister, as head of the executive branch, rejected the unanimous recommendation of the special parliamentary committee to amend the constitution keeping the caretaker system. This was a clear violation of the principles of separation of powers.
No referendum was also held during the passage of the 15thamendment, which was mandatory per the 12th amendment of the constitution. It may be recalled that the 5th amendment, which originally included the referendum provision in the constitution, was declared unconstitutional by the Supreme Court. However, the 12th amendment, enacted in 1991, reinstated the referendum provision in the constitution.
Furthermore, about a third of the constitution was made unamendable by adding Article 7B to the constitution through the 15th amendment and terming them as ‘special provisions,’ raising them to the status of the unamendable `basic structure.’This was clearly a violation of the doctrine of basic structure.
Making about a third of the constitution unamendable, the 9th parliament also took away the right of the future parliament to amend the constitution. As the constitutional expert, Mahmudul Islam, in his Constitutional Law of Bangladesh, (Mallick Brothers, 3rd edition, pg. 31) argued, ‘No parliament can bind the future parliament.’
Thus, not only the legitimacy of the 15th parliament is questionable, but it is also an unconstitutional amendment of the constitution.As researcher Dr. Adeeba Aziz Khan observed, ‘Despite dissent from the opposition, civil society and voters, the AL-led super majority Parliament disregarded the direction given by the Court that the NCG (non-party caretaker government) should remain in place for two more national elections’ (‘The Politics of Constitutional Amendment, International Review of Law, 2015).
In defying the short order, the ruling party claimed that the Court gave the observation that for the 2014 and 2018 elections to be held under the caretaker system, the parliament’s approval would be necessary, which was a total fabrication of the truth – the Court gave no such observation.This misinterpretation was entirely deliberate, as it brought back the provision of holding elections under the party-based government as opposed to the caretaker government. Seven elections under such a system in the past, including the last two ones, were not credible. By contract, the four elections held under a non-party caretaker government were found credible by local and international observers.
As the 15th amendment was passed to perpetuate the rule of the party in power, the main objective of the proposed dialogue must be to find an alternative to a partisan government so that equal opportunity is created for all parties, paving the way for a competitive election.
Free, fair and competitive election also requires all stakeholders’ confidence in the election commission, whose responsibility is to create a conducive environment for competitive election. However, the present Awal commission itself has admitted that it suffers from a crisis of confidence. The main reason for such lack of confidence is that the present the commission was constituted in violation of the law and without exercising due diligence.
While the law enacted in 2022 for appointing the election commission provided for political parties and professional bodies to propose names for such appointments, the search committee, formed under the 2022 law,opened this up and allowed individuals to propose names, even their own names, which is a clear violation of the law. Also, the former election commissioner Sohul Hossain was included in the search committee, although he sought Awami League’s nomination in the last election. All these led to the allegation that the government cleverly ensured that the commission was comprised of persons of its own choosing.
Another reason for the election commission’s facing the crisis of confidence is its insistence on using EVMs without paper-trail first in 300 and later 150 constituencies. It may be recalled that the late Professor Jamilur Reza Chowdhury, who was the head of the EC-appointed technical evaluation committee, refused to endorse the purchase of the EVM without paper-trail.
In the past, there had been dialogue held with the mediation of representatives of the Commonwealth and of the UN Secretaries General or by local ambassadors. We propose that this time too dialogue be held with no further delay, mediated by any such quarters
Yet another reason for the crisis of confidence of the election commission is the mysterious defeat of the outgoing Mayor Mr. Monirul Huq of the Cumilla city corporation election from the results of the last four centers which came several hours after the closing of the polling using EVMs. In the same election, AKM Bahauddin MP was asked by the election commission to leave the city corporation area, but the commission made an about turn after he refused to comply.
In addition, registration of the two so-called ‘king’s parties’ whose names we never heard of, ignoring other active political parties, hurt the reputation of the election commission. In the Gaibandha-5 by-election, letting the big fishes like the Returning Officer and the Superintendent of Police off the hook and finding the small fries guilty of electoral malfeasance and not punishing them,despite the commission’s having legal authority to so, also contributed to the crisis of confidence of the election commission.
The election commission’s reputation is further compromised by the curbing of its own powers by replacing the term ‘election’ by ‘polling’ in section 91A of the RPO and then denying it. It remained silent about the police’s filing thousands of fictitious cases and other repressive measures against the political opposition, destroying the evenness of the electoral field and putting into question the neutrality of the commission. Ignoring the well-established definition of election, which involves choosing among credible alternatives and asserting that it makes no difference who joins the polls or who does not, hurts the commission’ credibility. All such actions have brought down the confidence of the people in the election commission to the lowest ebb. Under such circumstances, the one of the agendas of the proposed dialogue must be the reconstitution of the election commission with honest and reputed persons.
Also, in order to ensure an environment for a competitive election, there must be strict action against those who carry out violence. According to the opposition BNP, scores of its activists have been killed and many more injured during the last one year in violence unleashed by the police and the ruling party. If the persons responsible for such violence are identified and punished by means of an independent inquiry, a peaceful environment for the election can be ensured.
An environment for competitive elections can be ensured if the filing of fictitious cases and arrests is halted and the proceedings of the past cases are suspended. According to a Voice of America report (28 September 2023), based information furnished by BNP, from 2009 till 2023, over 138,000 cases have been filed against 4 million of their leaders and activists.
According to a New York Times (2 September 2023) article, ‘Quietly Crushing Democracy: Millions on Trial in Bangladesh,’ such repression was possible because ‘over her (Sheikh Hasina’s) 14 years in office, she has captured Bangladesh’s institutions, including the police, the military and, increasingly, the courts, by filling them with loyalists and making clear the consequences for not falling in line.
She has wielded these institutions both to smother dissent — her targets have also included artists, journalists, activists and even the Nobel Peace Prize winner Muhammad Yunus — and to carry out a deeply personal campaign of vengeance against her political enemies.’
On behalf of SHUJAN, we have long been advocating a 'National Charter' to be drawn up through dialogue among political parties and signed by them to eliminate the flaws in our electoral system and repair the state. In recent meetings held all over the country, our proposal received almost unanimous support from all concerned,including political parties, businessmen, civil society and the youth. Therefore, we echo the recommendation of the recent IRI and NDI-led US pre-election assessment mission and again ask our political parties to hold meaningful dialogue with open minds in order to find a credible and long-term solution to the prevailing impasse. In the past, there had been dialogue held with the mediation of representatives of the Commonwealth and of the UN Secretaries General or by local ambassadors. We propose that this time too dialogue be held with no further delay, mediated by any such quarters.
* Dr Badiul Alam Majumdar is Secretary, Shushashoner Jonno Nagorik (SHUJAN)