Law alter views
Clean Candidates for Effective Parliament
Dr Belal Husain Joy
How fair the words 'Fair Candidates' and 'Fair Parliament' sound to the people of Bangladesh? Of course fair if not to many or most of the candidates contested to-date to be Members of Bangladesh Parliament.
The background history of Parliament in this part of the world reveals that the Bengal Legislative Assembly was first constituted under the provision of the Government of India Act, 1935. The first session took place on 7 April 1937 and the very next on 3 February, 1947, with a gap of ten years, although in both the parliaments lively discussions did take place. Almost similar gaps are also found in the subsequent parliaments during the Pakistan and Bangladesh periods.
During the Pakistan period, the East Bengal Legislative Assembly was first held on 29 March, 1948 and thereafter on 5 August 1955, again, with a gap of more than seven years. Quite similar gap was also occurred when the East Bengal Legislative was held on 9 June 1962 and the last session for the Pakistan regime of the Constituent Assembly was held on 10 April, 1971, after long nine years.
The fact is, Awami League, headed by Bangabandhu Sheikh Mujibur Rahman won a massive electoral victory in December 1970, winning all but two seats in the National Assembly in East Pakistan and gained an overall majority in the whole of Pakistan. But the West Pakistani military government refused to hand over power to the East Pakistani majority representatives, and announced an indefinite postponement of the newly elected National Assembly, which ultimately led to liberation war of Bangladesh. Democracy and Parliament of the then Pakistan were finally fell in the hands of systematic butchery. Again, such a crackdown was the result of drastic failure of fair practice of the Provincial and Central Parliaments of the then Pakistan.
Even after sacrificing millions of lives and wading a sea of blood from the language to independence movements and liberation war, we haven't learned the lesson of running effective parliaments, rather followed almost the same path, resulting in a situation where we still live in a fool's paradise without accountability and transparency on the part of most of the politicians and especially the Members of Parliaments.
The first session of the first Bangladesh Parliament took place on 7 April, 1973 following the General Election held on 7 March 1973, and the second , third and fourth parliament were held under military rulers. General Election for the fifth parliament was held on 27 February 1991 and the first session of the fifth parliament commenced on 5 April, 1991. General Election for the sixth parliament took place on 15 February 1996 (without participation of the major political parties), the first session of the sixth parliament took place on 29 March 1996. Seventh Parliament election was held on 12 June 1996, the first session of the seventh parliament took place on 14 July 1996; and finally the General Election of the eighth parliament was held on 1 October 2001 and on 28 October 2001 the eighth parliament had its first session. It looks good that the people of Bangladesh elected their representatives at least in three among four consecutive elections since 1991.
But the question is, whether the elected representatives have the right to freedom of opinion and expression without interference as ensured in Article 19 of the Universal Declaration of Human Rights 1948, also as per the Article 39(2)(a) of the Constitution of the People's Republic of Bangladesh. The fact is, under the Article 70 of the Bangladesh Constitution, a Member of the Parliament elected with nomination from a political party shall vacate his seat if he resigns from that party or votes in Parliament against that party. It goes further, if even a member of the parliament is absent or abstains from voting, it will still be counted as if he has voted against his own party. The Article 70 was substituted by the Constitution Act 1991. This is highly contradictory amendment (12th) and subject to right to fundamental freedom of a citizen and to be a member of the parliament s/he must be a citizen first. This is why, the civil society activists are constantly demanding to make a member of the parliament a true representative of the people rather than his own party.
In addition to this, unscrupulous persons have hardly allowed the Parliaments to function democratically from 1947 till to-date. They were elected hoodwinking the people and had no attributes to leadership; also paved the way for coup, counter coup and bloodshed. Fair candidates for fair parliament have always been felt short in every election.
In every Parliament, series of sessions did take place but almost in all sessions the main opposition parties remained absent. All the Parliamentary decisions and legislations passed were with majority consent but without any participation of the opposition except only one or two occasions. Two major party politicians so far came to power since 1991 rather divided the country into two parts. There has been no co-operation from either side in administering the country, and jealousy and enmity dominated their actions. As a result, healthy politics is remarkably replaced by political terrorism. Although claimed democratically elected, all these three consecutive governments failed to govern the country efficiently and effectively to the satisfaction of the electorates -- to establish law and order and justice, increase productivity and take direct economic measures to eradicate poverty and corruption.
Poor or ineffective performance of the peoples' representatives in the Parliament simply proved that they have had hardly any vision, on the basis of which they could undertake missions to benefit of the general members of public. The plain truth is, both the major political parties only worked against each other, seriously hampered national interests and development in the country.
Realising the seriousness and consequences of such repeated failure of the Parliaments, a number of committed social workers and political activists and advocates like Abdul Momen Chowdhury, K M Zabir and Zahirul Islam, later joined by Dr Kamal Hossain, filed a writ petition with the High Court Division of the Supreme Court on 24 May 2005, in the form of public interest litigation, seeking direction upon the Election Commission to ensure disclosure of information on antecedents and past performance of candidates necessary for making correct choice by the voters.
The petitioners argued that the Members of the JS to be elected by the people must have qualification and suitability to hold such public position. The petitioners emphasized that 'evil doers and those with evil motive should be prevented from coming in the legislature, law breakers should not be allowed to become law makers' and also added with serious concern that 'most of the people of the country are illiterate and lack understanding and so they are hoodwinked by the selfish representatives who build their future at the cost of the people'. The petitioners respectfully reminded that 'for the blatant betrayal by the leaders and evil attempt to cling to power by fraudulent and illegal means the people had to demand for caretaker government to conduct elections.
Likewise, the decision making process of the voters would include their rights to know about public functionaries who are required to be elected by them; and accordingly, the Election Commission should make necessary provisions to allow the people know the following from an intending candidate in the election to the parliament: (a) Academic qualification with certificate from the Board or University if any; (b) Whether accused in any criminal case at present; (c) whether there was any past record of criminal case and the result; (d) profession/occupation; (e) source or sources of income; (f) whether was a member of parliament earlier and the role played individually and collectively in fulfilling the commitment to the people; (g) description of assets and liabilities and dependent members; (h) particulars and amount of loan taken from bank and financial institutions dealing with public money personally, jointly or by dependent member or loan taken by any company from bank where the candidate is Chairman, or Managing Director or Director etc.
Upon hearing the above writ petition, Mr Justice Md Abdul Matin and Mr Justice A F M Abdur Rahman issued a rule calling upon the respondents (1) Bangladesh govt and (2) Bangladesh Election Commission to show cause as to why they should not be directed to secure to the voters particulars from the candidates for the election to the parliament in the form of information disclosing the past of the candidates including certain facts necessary for making correct choice by candidates. This rule was not opposed by any respondent. The Hon'ble Justices mentioned that it had been asserted that the Constitution contemplates a free and fair election and vests comprehensive responsibilities of superintendence, direction and control of the conduct of elections in the Election Commission.
Giving due reference to Article 119 of the Bangladesh Constitution, the Hon'ble Justices held that it was permissible for their Court to set down guidelines as prayed for. The question of right to know was also examined in the said judgment and it was held that people's right to know is inclusive of their right to vote, and the rule was made absolute. At the same time, the Hon'ble Justices directed the Election Commission to disseminate the information amongst the voters about the candidates through mass media and the State was directed to provide necessary logistic support for the purpose.
In search of fair candidates for fair parliament, the above initiatives of the petitioners and the judgment were imperative to get rid of musclemen, black marketeers, bank defaulters, uneducated and corrupt persons from the House of the Nation. Now, the next steps are left with the people of the individual constituency to check and come up with the facts about their intending candidates, whether the affidavits made by the candidates are true or false. In case of false statements given by any candidate, the voters of the respective constituency have every right to bring the matter to the attention of the Election Commission for necessary action and/or corrective measures or failing which, the matter will remain open to be challenged in the Court of Law, and such candidates may be ordered to withdraw their nominations or face legal consequences, like six-month imprisonment under Affidavit Act and/or punishments under penal clauses of the election rules and laws.
Finally, professionals like lawyers, civil right personalities and societies or even NGOs may undertake this challenging venture to help the voters to choose their right candidates, if needed, in preparing the complaints and cases; monitor the commitments made by the candidates, during their election campaigns, for the whole period of their offices in the Parliament once elected; and to help the Election Commission in disseminating candidates' antecedents and other relevant information and providing logistic support on behalf of the government to uphold the direction given by the High Court Division of the Supreme Court of Bangladesh in the above landmark case. Such responsibilities are just not to act as election observers on the day, but to act for fair candidates for fair parliaments all times.
The author is a researcher and Barrister-at-Law.