Vol. 5 Num 423 Thu. August 04, 2005  

The Sunamganj-3 by-election: A failed test case

The by-election in Sunamganj-3 constituency was held on July 20, 2005. It was a test case in that for the first time in our history candidates in an election had to, in response to a High Court judgment, disclose some critical information about their personal and financial background to help the voters make informed decisions. Unfortunately it was a failed test case. The reason for the failure is that the relevant stakeholders failed to effectively play their respective roles.

On May 24, 2005, the High Court Division of the Bangladesh Supreme Court (Abdul Matin Chowdhury and others vs Bangladesh, Writ Petition No. 2561 of 2005) directed the Election Commission (EC) to collect from each candidate in parliamentary elections, in the form of an affidavit, along with his/her nomination paper, the following information: "a. Academic qualification with certificate from the Board or University. b. Whether he is accused in any criminal case at present. c. Whether there is any past record of criminal case and the result. d. Profession/occupation. e. Source or sources of income. f. Whether he was parliament member earlier and the role he played individually and collectively in fulfilling the commitment to the people. g. Description of assets and liabilities of the candidate and dependents of the candidate. h. Particulars and amount of loan taken from Bank and Financial Institutions dealing with public money personally, jointly or by dependent or loan taken by the Company from Bank where the candidate is Chairman/Managing Director/Director." The EC was also directed to disseminate the information submitted by candidates among voters through mass media. The Court recognised that "people have a right to know and such right is included in the right to franchise."

EC's failure
The Election Commission took the initiative to implement the High Court judgment in Sunamganj-3 by-election. Unfortunately the Commission's efforts lacked assertiveness and seriousness, and in fact, they were feeble at best. For example, it issued a one paragraph special circular on June 18 asking the DC of Sunamganj, who is the Returning Officer (RO) of the Sunamganj-3 by-election, to implement the directives. It simply sent a copy of the judgment along with a pro-forma affidavit. The Commission provided no guidance to the RO nor did it specify any punishment for non-compliance. It fact, the CEC in a recent television interview contended that since the judgment did not specify any consequence, it should be construed as directory rather than mandatory. What this contention seems to mean is that even if the candidates fail to file affidavits or provide wrong, incomplete or misleading information, their nomination papers would be accepted. This would in essence amount to making the submission of affidavits simply optional for candidates, flouting the High Court judgment. In fact, if the directives do not have to be complied to, they are not worth the paper on which they are written.

In this context we may cite the famous Secretary, Ministry of Finance vs Masdar Hossain case (20 BLD (AD)(2000), where the Bangladesh Supreme Court directed the government to separate the judiciary from the executive. The seminal judgment contained no provision for consequence for non-compliance, yet no one ever claimed that the Court's judgment was directory rather than mandatory. In fact, the Appellate Division has been repeatedly taking the government to task for its failure to promptly implement this historic judgment. Ironically, our present Chief Election Commissioner, as the judge of the Appellate Division, was part of these proceedings.

Clearly, the EC's contention is erroneous because our Constitution has empowered the High Court to issue orders and directives (Article 102) and they have the force of law (Article 111). Thus, it would be unlawful not to submit the affidavit with the nomination paper. Furthermore, without the affidavit the nomination paper would be incomplete and hence be liable to be cancelled for being defective.

Furthermore, Article 118 of our Constitution recognises the EC as an independent constitutional entity and Article 119 gives it a reservoir of power to ensure fair elections. As the Appellate Division of the Bangladesh Supreme Court, in Altaf Hussain vs Abul Kasem (45DLR(AD)(1993)), observed: "Election Commission's inherent power under the provision of 'superintendence, control and direction' should be construed to mean the power to supplement the statutory rules with the sole purpose of ensuring free and fair elections." Thus, although the High Court did not spell out the penalty, the Commission, given its residual power under the Constitution, could work out the norms and modalities, including the specification of penalty, to implement the judgment.

Indian example
TIndian Election Commission did exactly that in a similar situation. On May 2002, the Indian Supreme Court gave a similar landmark judgment directing the EC to collect from each candidate seeking election to Parliament and State legislatures information about his/her criminal antecedents, assets owned by the candidate and his/her dependents, his/her liabilities, and his/her educational qualifications. The Indian judgment also did not specify punishment, yet the EC issued a 5-page order clearly directing the RO to cancel the nomination papers of candidates for non-submission of affidavits or for providing wrong or incomplete information or for suppressing material information. This order to cancel nominations was rigorously enforced. For example, during the last Rajya Sabha election, the nominations papers of two Congress candidates were cancelled for non-submission of affidavits. Furthermore, the Indian EC allowed the submission of counter-affidavits by opponents. In addition, it posted the original affidavits filed by candidates in its website. It may be noted that based on the information submitted in their affidavits, about 20 per cent or 115 Indian legislators with criminal records have been identified as "tainted MPs" and a movement is now afoot there to take away their parliamentary membership.

The Indian Election Commission rather unilaterally implemented the judgment as it did not have the rulemaking authority and the Indian Ministry of Law and Company Affairs refused to make the necessary rules when approached by the EC. In contrast, section 94 of The Representation of the People Order, 1972 of Bangladesh vests rulemaking authority in the Election Commission. Hence, unlike their Indian counterpart, our Election Commission could frame the necessary rules and specify the consequences for non-compliance, if it intended to do so. It could thus fully and completely implement the High Court judgment even without any reference to the government. It is clear that in contrast to the Indian EC our Election Commission has failed to exercise the power already vested in it under the existing statutes and perform its constitutional responsibility for holding fair elections.

Misleading disclosures by candidates
Nine candidates contested the Sunamganj-3 by-election. We verbally sought copies of the original affidavits from the CEC, but failed to receive them despite repeated assurances. We also made written requests to the RO for them. Again, our requests were denied, although getting copies of the original affidavits is a question of citizens' rights endorsed by the High Court rather than a gesture of generosity by the authorities.

Instead of disseminating the original affidavits, a table is compiled and distributed by the RO apparently based on the affidavits submitted by the candidates. The most fundamental question about the data in the table is that one cannot be certain about their veracity. Human beings are not angels and there may have been errors, wilful or inadvertent, in the compilation. Such errors would make a mockery of the High Court directives. The court directives are intended to empower the voters with facts, rather than mislead them with erroneous information. Besides much of the information included in the table are too vague to be of any use to voters.

A careful perusal of the table also raises serious questions about the credibility of the information. For example, none of the candidates has any liabilities. Only one candidate has a bank loan. More seriously, none of the candidates seem to have any bank account or cash assets. If so, how are they, one may ask, going to defray their election expenses? In addition, contrary to the Court directives, the assets held by spouses and dependents are mostly absent in the table. We also fail to fathom how educational qualifications can be reported as "not applicable."

The EC and RO could easily verify the information contained in the affidavits. Under section 44AA of RPO, candidates in parliamentary elections are required to file, within seven days, the acceptance of their nomination papers, statements showing the sources of their election expenses, their assets and liabilities and also a copy of their most recent tax return. The authorities could easily, if they were interested, compare the information submitted under 44AA with the affidavits and verify their authenticity. Not only the EC and RO failed to verify the accuracy of the declarations made by candidates, they have also prevented us from doing so. We, on behalf of Shujan, formally sought the copies of candidates' declarations and also the original affidavits. Our request was denied, although we are entitled to those documents under section 96 of RPO.

The EC was directed by the High Court to publicise the information submitted by candidates in the form of affidavits through the mass media. The only visible action we have seen on the part of RO in this regard is to issue the summary table mentioned above and hold a news conference. We also wrote to the RO seeking information about the concrete and specific steps he had taken to publicise the affidavits. Again, we did not hear from him.

Failure of civil society
Not only the candidates failed to fully and completely disclose the information required by both the Court directives and the existing statutes, and the EC and RO lacked seriousness to enforce these disclosures, the so-called civil society institutions have not also done their part. They did not, in a significant way come, forward with their activism. No citizen groups, other than Shujan, made any demand total compliance with the Court order and the existing law. No group took any initiative to inform the voters the information, however distorted they may be, compiled by the RO. Even the media, other than two exceptions, took no steps to investigate and verify the information disclosed about candidates, and they have failed to uphold people's right to know.

The relative inaction of our citizen groups may be contrasted with the activism of Indian civil society following its Supreme Court judgment of 2002. Distinguished citizens and voluntary organisations came forward to form Citizen Watch in each Indian state to ensure that Court verdict is fully and completely implemented. For example, Justice Venkatachalia -- who was the former Chief Justice of the Indian Supreme Court and former head of the Indian Human Rights Commission and the former head of the Constitutional Review Committee -- became the head of Election Watch of Karnataka state. Unlike India, most of our distinguished citizens are unwilling to get involved -- and we found it through the hard way.

The High Court recently gave a historic judgment requiring critical disclosures by candidates in national elections to empower voters with information. This is a historic judgment in that it opens a window of opportunity to de-criminalise our present system of politics by making it difficult for criminal elements and possessors of black money to run for election. It also creates openings for honest, competent and dedicated individuals -- individuals dedicated to the service of the people -- to come to state power. Only such changes can pave the way for establishing a truly democratic system, a people's rule in our country and usher in a better future for us all.

The recently-held by-election in Sunamganj-3 provided a test case for the implementation of the judgment. Unfortunately all interested parties failed in their respective roles. The EC shied away from its constitutional responsibility to seriously enforce the judgment to ensure fair elections. Fair elections require maximum disclosures by candidates so that voters can make their choice fairly based on information. Organised citizens groups largely failed to demand full compliance and accountability on the part of the EC and also show much activism to implement the court directives. The media also mostly failed to do any investigative reporting and uphold people's right to know. Despite the failures in Sunamganj, we hope we will learn from our experiences and do better next time -- in Faridpur-1 by-election to be held on August 30. Our doing better in the future is important because the future -- the future of our future generation depends -- on it.

Dr. Badiul Alam Majumdar is Member-Secretary, SHUJAN, and Global Vice President and Country Director, The Hunger Project-Bangladesh.