Its meaning, attributes and limit
The scrapping of all provisions relating to the non-party caretaker government for the conduct of Jatiya Sangshad elections has raised a storm of protest by the opposition political parties. The ruling Alliance has taken the firm position that the caretaker system was introduced purely as an interim arrangement for establishing electoral democracy in the country; that three Sangshad elections have been conducted under the system; that in the recent past the system had been subjected to manipulation leading to undesirable intrusion of non-political entities into the political domain; and that it is time now to revert back to normal system.
The Opposition parties with equal force maintain that the time has not yet come for holding parliamentary elections under a political government. They have also expressed their firm determination not to allow holding of any election under such arrangements.
In the sidelines of these heated debates, we come across statements by senior government leaders and ruling party stalwarts that free and fair parliamentary polls can be held under a political government with a further strengthened and independent Election Commission.
As understood from discussion at different times and various levels, the line of argument goes like this: till 2006, the authority and power of the commission were limited for which it could not overcome the political influence and interference in the electoral process necessitating the introduction of the caretaker system.
The commission attained large measure of independence during 2007-12 and was strengthened institutionally by various reform measures. Under the present government, the strengthened commission succeeded in holding highly credible elections to a number of vacated Sangshad seats and to thousand other local government positions across the country.
This success is a testimony to the claim that credible elections are possible under a political government. To ensure holding of still better elections, the commission can be granted more independence and strengthened further institutionally.
Statements about strengthening the election commission are made every now and then and with vigour but we have not seen any detailed plan as to what government intends to do to the Commission for its strengthening. This information is important for the reason that different stakeholders generally look upon such issues from the point of view of their own self-interest.
On the last occasion, the one thing the government did for strengthening was to fix the number of commissioners to five ignoring the recommendations of the then election commission and the concerned Parliamentary Committee who had suggested three commissioners.
Already there are media reports that coordination within this enlarged body has become problematic and this would be more acute as it approaches the most challenging task of holding the upcoming Sangshad elections.
It will be argued in this article that the recognition of the necessity of full independence of commission for conducting free and fair election is the right approach. Unfortunately, the focus is only on one aspect of independence that regrettably ignores the more important ones.
Moreover, an independent commission is only one partner in this game; there are other influential partners who are not mentioned. If any one of them decides not to play by the rules of the game, it may not be possible for the commission to see through a free and fair election.
The success of the Xth commission (2007-2012) is often cited for bolstering the argument for election under a political government. As I had the privilege of serving that Commission as its chief, I have to point out that this success was not only due to electoral and institutional reforms but also to the integrity of the Commission and the process and behavioural innovations introduced by us to build people's trust in it.
Several international organisations had conducted surveys on public confidence in the commission between 2007 and 2009. The survey data showed sizeable and unwavering support for the commission peaking at 87.2 percent in December 2008. This kind of pubic support and goodwill gave our commission a huge moral boost and inspiration to carry on our work in the most neutral and fair manner even after the advent of a political government in January 2009.
It is, therefore, imperative to have a clear understanding of the meaning, attributes and limit of the term independence. If the propositions about independence are meant seriously, there is no alternative but to look at it in its totality.
A comprehensive review only can instruct us about the possible areas of intervention for securing the independence of the commission and the probability of making up the absence of a caretaker government.
Independence, in the context of an election commission, has two distinct but inter-related aspects. It means empowerment of the commission through suitable legal and institutional means so that it can carry out the tasks assigned to it by the laws.
Secondly, it also means the will of the commission to decide each individual case on merit without any fear or favour as well as the determination to implement such decisions against all odds. The first aspect is called structural independence while the other aspect behavioural.
As far as structural independence is concerned, Bangladesh election commission is already sufficiently empowered and strengthened. The constitution has bestowed it with a broad measure of empowerment to “supervise, direct and control the electoral process.” The constitution of India contains similar provision for the election commission of India and the courts in India have consistently held that, subject to the provisions of the constitution, the election commission is fully competent to take any decision for the conduct of elections.
In particular, the Supreme Court of India has held that where the enacted laws are silent or make insufficient provisions to deal with a given situation in the conduct of elections, the commission has residuary powers under the Constitution to act in an appropriate manner.
While disposing of a Writ filed by Abdul Momin Chowdhury in 2005, the Supreme Court of Bangladesh also gave similar ruling citing the Indian precedent.
The Representation of People Order is the principal legal instrument for the conduct of elections. This is periodically reviewed for changes to meet emerging situations. This was also amended comprehensively in 2008, in consultation with the political parties, civil society and the media, with the aim of containing, if not to fully eliminate, electoral maladies particularly in respect of nomination of candidates, method of campaign, election expenditure, voting process and resolution of election complaints and disputes.
For violation of any of the set procedure, the commission is empowered to take punitive action including power to cancel candidature or fully or partially cancel polling in particular polling station or the entire constituency. The commission has also the power to seek and secure the services of any public official for the conduct of elections.
Both executive and judicial magistrates are also available with the commission during election period who conduct summary and regular trials for committed election offences. As a consequence of such trials, in addition to fines and imprisonment, candidates may be debarred from contesting elections for a number of years.
The notion of the commission's independence reached a new height with the promulgation of the Bangladesh Election Commission Secretariat Ordinance, 2008 subsequently ratified by the IXth Jatiyo Sangshad into an Act in 2009. The Act has de-linked the Commission Secretariat from the Prime Minister's Office. It is no longer under the control of any Ministry, Division or Office. It has also been given the authority to periodically review its manpower needs in association with officials of relevant government agencies and whatever is decided by this committee would be deemed as final.
Similarly, the commission does not have to seek the clearance of the Ministry of Finance every time it needs release of fund once the budget is approved by the Sangshad.
Sadly enough, even after the enactment of the Secretariat Act, the commission had faced lot of difficulties in conducting the local government elections due to bottlenecks in release of funds and unusual delay in getting sanction for additional manpower. The Recruitment Rules for the appointment of officers and staff of the commission still require it to obtain the clearance of the government for appointment to Class 1 positions.
Interestingly, all autonomous and semi-autonomous bodies including the state-owned financial institutions which are subordinate to their administrative Ministries have full independence on all recruitment and promotion matters. It is, therefore, not a question of bestowing more powers to the election commission but of facilitating smooth implementation of the procedural changes already made through legislation.
The regulatory ministries are yet to acquiesce to their loss of authority over the financial and personnel management of the commission and continue to create obstacles in the smooth implementation of the changed procedures. There is a need for reorienting the attitude of the concerned members of the bureaucracy about these changes. If that can be assured, there will be no need for any major structural changes in the near future.
Structural independence is necessary but not sufficient for ensuring a free and fair election. Structure builds the body but it needs the assemblage of persons who are determined to carry through the vision and mission for which the structure was created in the first place. This independence, termed as behavioural independence of a commission, is blind in the sense that decisions are made absolutely on the basis of the laws under which it operates and its own judgment irrespective of their consequences on the contesting persons or parties.
It is also fearless for the reason that the commission shows its determination in implementing those decisions against all odds. For living up to such high standards of morality, the commissioners have to be persons of high integrity with an unblemished record of service to the people and a high level of management skills. In the context of divisive nature of politics in Bangladesh, the method of recruitment and qualification requirements of candidates to be selected for appointment as commissioners assumes special significance.
After restoration of democracy in 1991, four Sangshad elections have been held by four different commissions. By all accounts given by local and international observers, these were generally free and fair and acceptable by international standards.
Unfortunately, the credibility of these elections has always been questioned by the losing parties. Bangladesh has had ten Chief Election Commissioners out of which six had to resign due to accusations of partisanship by political parties. Some of these accusations are true and some of the commissioners have shamelessly exhibited their partisan behaviour: but this did not warrant indiscriminate condemnation.
Obviously, this attitude of not accepting defeat and finding a partisan attitude in everything that a Commission tries to do is reflective of an exclusive political culture where the losing party faces a total denial of any constructive role in virtually all spheres of life. In setting up a new commission, the most important thing to do is to prescribe the qualification standards of candidates, a very transparent selection process where the standards are scrupulously followed and a mechanism through which consensus on selected candidates can be reached.
This lack of transparency of selection process and failure to obtain consensus of all major political parties create the opportunity to cry foul in elections by the losing party and humiliate committed and righteous persons who successfully conduct free and fair elections. This kind of lingering mistrust and unjust denigration of the commission weakens its authority in the discharge of its mandated duties and hampers its long term institutional development.
The commissioners enjoy very high status in terms of their position in the Warrant of Precedence and enjoy similar emoluments and other facilities prescribed for Judges of the Appellate Division for the Chief Election Commissioner and of High Court Division for other Commissioners. It is important that no person should be considered for appointment as a Commissioner below the rank of a Secretary to the Government or that of a Judge of the Supreme Court of Bangladesh. India has never appointed a person to be a Commissioner below the rank of Secretary. In Pakistan, all Commissioners have been judges of the Supreme Court. Except for the Chief Election Commissioner, the incumbent Election Commission in Bangladesh consists of persons who never held the desired status. There is no justification to select persons of lower rank when reputed and able-bodied retired persons of appropriate rank are available in large number. Concerned people have already raised questions about their credentials and genuinely suspect ill-intention behind these appointments. It is apprehended that persons who could not reach the highest grade in their service career and never even dreamt of occupying such a high position as that of an Election Commissioner, if appointed to such position, will do anything to satisfy their benefactors.
Another important issue for selection of commissioners is their political antecedents.
Since political parties, when in opposition, always complain of partisan behaviour of the commissioners, all information regarding the past of all nominees must be dug out by using all available means including investigative reports by journalists and disclosed to the public. Persons alleged to be affiliated with any political party or its front organisations or recipient of unusual benefits from a particular political government, such as, repeated extension of service after retirement, out-of-turn promotion, undeserved posting abroad and the like should not qualify to hold positions in the commission.
During scrutiny of nomination of candidates, Returning Officers initially and the commission on appeal, examine their profile against submitted information relating to their academic qualification, criminal records and financial status. Defaulters on loan repayment and payment of utility bills are debarred from contesting elections. Same principles should also apply in selecting the commissioners. If they do not come clean on all the points that debar a person from being a candidate, the Commissioners will have no moral right to hear and adjudicate on such cases.
The allegation of partisanship will not hold water if the commissioners are finally selected through consensus of all political parties. The Xth commission, while forwarding the draft Bill for appointment of the commissioners, had recommended placing the findings of the Search Committee to the Business Advisory Committee of Sangshad. This is one Committee where the Speaker is the Chairperson and the Prime Minister, Leader of the Opposition and top leaders of all other parties represented in Sangshad are members.
While selecting the members of the incumbent Commission, government only constituted a Search Committee but ignored other important recommendations. There is no consensus and there will be repetition of the same blame game. Even in Bhutan, where democratic process has just started, the Commissioners are finally cleared by the Parliament.
Coming back now to the question of strengthening the Bangladesh Election Commission, I hope I have been able to make the point that independence consists of two aspects: structural and behavioural.
On the structural side, there is hardly any need for any major intervention. The pressing agenda here is for the Government to create conditions for implementation of reforms already made. However, on the behavioural side, changes of a fundamental nature are a crying need of the day. A Bill specifying the qualification requirements, method of recruitment and securing consensus of all political parties represented in the Sangshad on proposed candidates need to be drafted, widely circulated for obtaining public opinion and after suitable modifications passed by the Sangshad.
In the meantime, political parties and the general public would like to satisfy themselves that none of the sitting commissioners had any kind of political affiliation at any stage of their life or had been the beneficiary of any political patronage. Lower status of all the commissioners has also reinforced the general mistrust about the neutrality and integrity of commission. Sooner or later, the present commission will face these embarrassing questions. Caretaker government or not, the government will have to come up with a satisfactory solution on behavioral independence to facilitate the holding of the tenth Sangshad elections.
Finally, it must be emphasised that a fully independent commission, both in terms of structure and behaviour, may not be sufficient for holding a free and fair election. It needs the support and active cooperation of a number of partners, political parties being the most important one.
“Strengthening Election Commission” is projected by political leaders as an antidote to free and fair election in such a manner as if all other things pertaining to the conduct of credible election are in place and in good shape and it is only the commission that is the weakest link.
These leaders are right in their assertion that the commission is the principal instrument in the management of the elections and must be sufficiently strong but its strength cannot and should not be expected to make up the deficiencies in the expected role of other partners. Nor should there be any expectation that the Commission would go beyond its mandate and indulge in activities that are not prescribed for it under the law.
Voters do not create obstacles to free election: the mischief is done by the political parties and the candidates. Bangladesh election commission has gone a long way in delivering exceptionally good elections. The electorate is also marching with it in tandem. It is the political parties that are lagging behind. They need lot of catching up to do.
The writer is former Chief Election Commissioner and Secretary to the Government.
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