The Election Commission has shackled itself

There is extensive pressure from the United States and European countries for a fair and credible election in Bangladesh. As part of that pressure, despite assurances from the government, the US has gone ahead and declared a new visa policy. Similar visa policies had been imposed in a number African states on the question of elections there, but that was after the elections were held. As a result, the policy could hardly play an effective role.

In the case of Bangladesh, this has been done at the starting stages of the election process. This is a time when the government and other political parties, as well as the election commission, begin to prepare for the election.

The election commission is the constitutionally mandated institution to hold free, fair and credible elections in Bangladesh. Therefore, it is the responsibility of the parliament to strengthen the hand of the election commission by means of the law. But if the parliament weakens the election commission by tying its hands instead of strengthening it, then apprehension is bound to emerge in the public mind and among those who want to see a fair, neutral and credible election.

The reason for this preamble of mine is that the amendments to the Representation of the People Order (1972) that have been passed will simply serve to weaken the election commission's control over the election. In particular, the amendment made around two decades ago to Section 91 (A) of the RPO 1972 will, with no doubt whatsoever, weaken the commission's control. Similarly, the new appendage was not made in the manner as recommended by the commission. So the objective has been thwarted there too.

For those who, like myself, study election-related issues, the question will naturally arise as to whether the changes to Section 91 (A) will consolidate the election commission's control on the election, or weaken it. The world 'election' had been mentioned in this section in such a manner the election commission had the direct authority to suspend the election that any time during the election process, even on the election day, in the case of widespread irregularities or disruptions. During the term of the Shamsul Huda commission in 2008, this had been added to the RPO with unanimous consent. Later in 2009, the parliament passed this and it was added to the RPO. Two commissions carried out their terms with this section. There is no explanation as to why now, all of a sudden, this change was needed. Yet it was needed.

I had earlier written that internationally an election does not simply mean voting on the day of the election. It entails preparations for the election, voting, election results and the post-election situation. The post-election process remains under the election commission until the stipulated time that the results are published in gazette form. The post-election time remains under the judiciary. The election comprises this entire cycle.

According to the section of the RPO under discussion, the election could at any time (including on the day of voting), at any level and in any seat, be suspended or cancelled. It is not understood why the Awal Commission required the matter to be clarified. The question naturally arises, did the election face any form of backlash after cancelling the Gaibandha election?

Yet the parliament passed the bill and this has seriously curbed the jurisdiction of the commission. Perhaps the commission didn't want this. From the recommendations of the commission that I see, there was no change in the word 'election'. Even so, why did the commission add this in their proposal? Does the commission want to shrug off its liability so as to avoid international pressure?

Whatever the case may be, the manner in which the bill has been passed indicates that the changes have been made outside of the flawed amendment proposal of the commission. In three parts if the amendment, the word 'election' has been replaced with 'polling'. After the bill is published in the form of an ordinance, it will be added to the RPO. That means the election commission will have to curb the use of its authority in ensuing the coming election is fair and credible. While it is the ruling party that is responsible for limiting the election commission's powers and for this amendment, the commission has displayed a lack of maturity. They have shackled themselves.

No matter what explanation the election comes up with regarding their initiative and the government's amendment, the fact remains that the amendment has curtailed the commission's powers. Due to this change in the RPO, the commission can do nothing but carry out routine measures before the voting, unless it uses the power bestowed on it by Article 119 of the constitution. This liability to the greater part lies with the election commission.

It is the responsibility of the government and the lawmakers to strengthen the hand of the commission. And the election commission certainly has the right to made demands. In this case, their demands have not been fulfilled. These amendments were made at a time when the people and the global community are waiting for a fair and credible election. Such an amendment will certainly give rise to many questions.

* Dr M Sakhawat Hossain is an election analyst, former election commissioner and SIPG senior research fellow (NSU). He may be contacted at [email protected]

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