Election is a process, not a one-day affair. For an election to be credible every step in this process must be accurate, which in turn depends on certain specific criteria.
The criteria for a free and credible elections are: 1. A legal framework in place that can create a level playing field for all political parties; 2. In the process of preparing the voters' list, all eligible persons are able to become voters; 3. All those who are interested in contesting elections, can become candidates; 4. There are credible alternative candidates before the voters; 5. The constituencies are correctly demarcated on the basis of certain criteria; 6. Accurate information of the candidates are provided to the voters so they can exercise their voting rights in an informed manner; 7. Voters are able to cast their vote without pressure or fear; 8. Attempts to use money or violence to influence voters are effectively controlled; 9. Vote counting is done accurately; 10. Election disputes are settled speedily and impartially; and, above all, 11. The voting process is transparent, free of rigging and credible.
In order to meet these criteria, many important changes were brought about in the Representation of the People Order (RPO), 1972 under the stewardship of the last caretaker government. The Election Commission under Dr ATM Shamsul Huda, with inputs from political parties and other stakeholders including SHUJAN, had made a number of reform proposals into a law. Prominent among these reforms were: compulsory registration of political parties with the Election Commission; laying down stricter criteria for candidates to qualify to contest in the election; candidates having to submit an affidavit disclosing their antecedents; ensuring that committees at all levels of the political parties have one-third women representation etc.
There have been no other significant changes in the election law over the past one decade. However, in September last year, the Election Commission sent a proposal for vetting by the law ministry, to amend 17 sections of the RPO. Significant among these are: renewing the provision for one-third women's representation in the political party committees at all levels; having provision for punitive action for threatening the agents of the candidates or obstructing them from going to the polling centres; increasing the authority of the presiding officers to halt the voting; making it compulsory for candidates to submit their TIN certificates and receipts that they paid tax returns; making it compulsory to provide the candidates and their agents the detailed voting results.
Of all these proposals, we find only oneto be important, which is ensuring by 2030 that the committees of all political parties have one-third representation of women. The Commission’s other proposals are already in the laws or in existing court judgments and the Commission has also been using them. So including these in the RPO is merely a formality.
For example, Section 44(Ka)2 already requires candidates to submit their income tax returns. If any person forcefully obstructs presiding officers from performing their duties, the returning officers have the authority to immediately suspend voting in the centre and even in the entire constituency, and they have been using this authority too.
If there are complaints of irregularities during the election, then following an investigation, the Election Commission has the authority to suspend the publication of the gazette of the results of the entire constituency, cancel the results and order re-election. In the Noor Hossain versus Md Nazrul Islam [5 BLC )AD) (2000)], the Appellate Division of the BangladeshSupreme Court unequivocally gave the Election Commission this authority. The Commission won praise for applying this authority in the Gaibandha-5 by-election in October last year, though the Commission didn't clarify whether the by-election was cancelled or suspended. If it was cancelled, then the Commission had to announce a new schedule. And if it was suspended, not cancelled, then the Commission was not justified in ordering reelection in the centre which were not previously suspended.
In order to ensure free and credible elections, we feel it is important to include the following provisions in the RPO, alongside the constitutional amendmentfor a neutral election-time government to ensure the neutrality of the Election Commission, bureaucracy and law enforcement agencies:
1. Reinstating the 'no vote' provision; 2. Changing and updating the affidavit form; 3. Specific provision to cancel the nomination papers if there is false information in the affidavit or if information is concealed; 4. Provision to scrutinise the affidavits; 5. Making it compulsory to scrutinise candidates’ election expenditures; 6. Provision for the Election Commission to publish posters based on the information contained in the affidavit submitted by candidates and arranging ‘candidate forums’ in each constituency; 7. Affidavit and income tax returns must be submitted along with the nomination papers in the case of reserved seats for women; 8. It must be compulsory to have the names of the primary members of the political parties published and regularly updated on the websites; 9. There must be provision to scrutinise the audited accounts submitted to the Election Commission by the political parties; 10. Having provision for postal ballots so that Bangladeshis residing outside of their constituencies or overseas, can exercise their voting right; 11. Forming an election tribunal with district judges, subject to appeal tothe higher court, to settle election disputes in parliament elections; and 12. Extending the present three-day deadline to one week for the Election Commission to dispose of the appeals against the returning officer's decision regarding nomination papers.
We feel that the biggest obstacles to holding free and fair elections is not fully implementing the prevailing laws and rules. For example, 1. According to Section 90Kha(1)(Kha)(iii) it is illegal for registered parties to have affiliated or associated bodies or overseas branches, but all the major parties have been flouting those rules. These rules must be strictly followed; 2. The circular for online submission of nomination papers must be fully implemented so that aspiring candidates cannot be prevented from filing nomination papers; 3. It is essential to enforce the RPO provision for nominating candidates on the basis of the views of party members at the grassroots; 4. The circular regarding the ‘counter affidavit’ must be publicized and implemented.
The 'political consensus,' reflected in the 13th amendment to the constitution, aimed at overcoming the failure to hold free elections since independence, was abolished by the 15th amendment in an unconstitutional manner, misconstruing the Supreme Court's ruling in this regard. As a result, the 10th and 11th parliamentary election held under political governments were controversial and unacceptable. If such an election is to be avoided in the future, alongside with implementing election reforms, our political parties again need to come to another political arrangement. In fact, without a consensus regarding an election-time government, it is near impossible to hold a free election in Bangladesh. Our Election Commission must also realize that it has inherent power, that is, almost absolute power for holding free and fair elections. And where there are loopholes in the law, the Election Commission can even issue directives to fill these shortcomings in the interests of a free and fair election. [Altaf Hossain versus Abul Kashem, 45 DLR (AD) (1993)].
* Dr Badiul Alam Majumdar is secretary, Shushasoner Jonno Nagorik (SHUJAN).