Must the elections be inclusive?

Bangladesh's next parliamentary election will be held within 90 days after 1 November this year. In the meantime, the new visa policy announced by the US, aimed at ensuring a free and fair election, has created a stir in the political arena.

This has created all sorts of unease for the government, reflected in the various responses of the prime minister after 3 May and also in various measures undertaken by the government. Once this policy came out into the open, Awami League leaders tried to interpret this as a positive move that went in favour of the government.

The US visa policy maintains that the election must be held in a free and fair manner, but there is no specific statement saying that it should be inclusive. That is why Awami League leaders are saying that if BNP does not take part in the election or resists it, then it is BNP who will bear the brunt of the policy. It can then be assumed that Awami League may see an easy win, in the absence of competition.

Has this visa policy actually created an obligation for BNP and the other opposition parties to participate in the election under the present government? Or has it created pressure to ensure a free and fair election which, if ignored, will spell disaster for the country?

What does a free and fair election mean, in the first place? Does it create the obligation for an inclusive election? The various contentious political quarters must consider these matters astutely. This is not just for the people, the country's image and interests. They need to consider these matters in their own class interests.

The constitution, international conventions and the election history of this country have enough material for these considerations.

Nowhere in the constitution is it clearly stated that the election must be free and fair. This is never stated in this manner in the constitution of any country. But when the constitution was being drawn up, Bangabandhu and other top leaders of Awami League repeatedly highlighted in the national assembly that the election means a free and fair election, people's voting rights, the rule of the people's representatives, and a smooth transition of power. Tajuddin Ahmed spoke of elections without any intervention, and honest people's representatives running the country by means of free exercise of voting rights.

Bangabandhu spoke of the mindset to cordially usher in the persons elected through the free exercise of voting rights.

Even Article 11 of the constitution says that democracy means effective participation of the people in all spheres of the administration through elected representatives. It is easily understood from this that if a situation is created adverse to the participation of any party with wide public support in the election, and if the people are made disinclined to vote, then there is no longer any scope for the people to participate in the running of the country.

Again, if such an adverse situation is not created, and if a free and fair election does take place, then there is no fear of the election being non-inclusive. Up to a point of time in Bangladesh's political history, there was no fear or such a situation and the elections were inclusive. It was in 1988 that a one-sided election was first held in this country, due to the boycott by the opposition parties.

Later during BNP's rule, in face of a boycott by all major opposition parties, there was a one-sided election once again. While both these elections were technically legitimate, these did not have legitimacy with a large section of the people. Similarly in 2014, the election suffered from a legitimacy crisis and so the Awami League leaders dubbed this as an election held simply to uphold the rules. They promised that an inclusive election would be held soon after.

From these events it is evident that in Bangladesh's political culture, one of the main conditions considered to be essential for legitimate elections is that it must be inclusive. However, simply being inclusive does not make an election a real election. There were many other conditions raised in the national assembly debate on true elections. Such clauses appear in international documents too.

There are many definitions of a legitimate and credible election in international covenants and agreements. For example, two universal human rights-related documents (Universal Declaration of Human Rights 1948 and the 1966 covenant on civil and political rights) state that only those who emerge winners in a genuine election have the legitimacy to rule the country. According to the human rights committee formed by virtue of the latter covenant (general comment No. 25), one of the main conditions of such an election is ensuring equal opportunity of participation for all (parties, contestants, political workers and voters), and other freedoms such as of assembly, organisation and freedom of speech. Various reports of the UN secretary general regarding election support, the European Union Compendium of International Standard for Election and the inter-parliamentary group's criteria for elections, all speak in the same manner.

If the Bangladesh constitution and international laws applicable to Bangladesh are taken into cognizance, it will be possible to reach certain decisions concerning a credible election. One, for the sake of legitimacy and credibility, the election must be a genuine one, where the people can exert their voting rights to elect their actual representatives.

Two, an important condition of such an election is to provide all parties, political workers and voters, equal opportunity. Three, the winners must be given the scope to run the country. If an environment is in place to meet these conditions, there is no reason for the election not to be inclusive. And if peaceful meetings, rallies and movements are held to ensure such an environment, these cannot be regarded as obstacles to a free and fair election.

Is it possible to have an election process under a party government in Bangladesh where conditions are ensured for all political parties are considered fairly? The elections of 1996, 2014 and 2018 say, no, this is not possible. Quite to the contrary, these give the message that unless the neutrality of the election-time government is ensured, the election does not genuinely reflect the people's views and the winning party lacks moral credibility.

So the big challenge before Bangladesh now is not merely inclusive elections, but to speedily create an environment where all parties will participate.

We have ample experience and understanding of how an election can be fair and credible. However, unfortunately, there are many among us who only now feel the need for such an election, after a degrading visa policy was declared. That is why the people who have been deprived of their voting rights are having to view this US policy in a positive light.

* Asif Nazrul is a professor of the law department at Dhaka University

* This column appeared in the print an online edition of Prothom Alo and has been rewritten for the English edition by Ayesha Kabir