Towards free elections

Badiul Alam Majumdar runs a critical eye over the package proposal contemplated by the EC

Recently, the Election Commission proposed a set of amendments to The Representation of People Order 1972 (RPO). Shujan, 'Citizens for Good Governance,' has been demanding such reforms for a long time, and has prepared a draft ordinance, which it has already handed over to the caretaker government and the EC. Many other concerned citizens, citizen's groups, and the media have also been very vocal for reforms.

The commission members should be congratulated for starting a process of consultation before finalising the proposal. While the proposal represents a sincere effort and includes many of our, Shujan's, recommendations we have reservations about some of the proposed changes. We also feel that the proposal is incomplete.

The commission's recommendations may be divided into five broad categories: (1) reform and registration of political parties; (2) qualification/disqualification of candidates for parliamentary elections; (3) empowerment of voters through disclosure requirements, etc; (4) the commission's authority to debar candidates; and (5) resolution of election disputes.

In addition, the commission made a few other minor recommendations, such as reducing the number of polling agents per candidate at each polling station to four. For the sake of transparency, the commission also proposed to instantaneously disclose the vote count from the polling centres, and requires political parties to submit reports of election expenses within 60 days after elections. While there may be scope for reconsidering the restriction on the number of polling agents, the other minor recommendations of the commission are acceptable.

Reform and registration of political parties
We are pleased that the EC has proposed compulsory registration of political parties and restricting the nomination of candidates for parliamentary election to only registered parties. Barring registered parties from entering into electoral alliance with non-registered political parties is also welcome as is financial transparency through yearly submission of audited statements to the commission .

The commission also proposed that to be registered a party must have won at least one seat in parliament since independence, or a minimum 2% of the total votes cast in the last general election. In response to popular demand, it proposed disbanding of student fronts and labour and professional organisations of political parties. It also proposed the election of office bearers in party committees and that women constitute at least 33 percent of such elected committees as an additional condition for registration.

These conditions pertain to the registration of existing political parties. For the registration of new political parties, the commission proposed that they must have offices in at least half of the districts, 1,000 members in each district and 200 members in each upazila.

The proposed conditions for internal democracy and financial transparency are praiseworthy. However, we recommend that in order to ensure transparency all financial transactions of political parties must be carried out through bank accounts, and that audited annual statements must be made public.

We support the EC's proposal to ban front organisations as a condition for registration. Thanks to these fronts, most educational institutions have now become dens of extreme partisan and divisive activities of which most students are the victims, rather than willing participants. We also favour having at least one third women as office bearers, though parties should also be required to nominate women in at least a third of the parliamentary seats as a condition for registration.

The purpose of registration must be not only to promote internal democracy and transparency, but also to create political parties that are accountable to their primary members as well as to the voters. In order to ensure this and to prevent the nomination of candidates in exchange for money, popularly known as mononoyon banijya, primary members of political parties must be given a formal say (for example, through party primaries or caucuses) in the nomination process.

This will require political parties to compile and publish a list of its primary members, which could be done through party websites. Since political parties by definition are groups of individuals with a common ideology or vision, and are not secret organisations, the names of their primary members must be known. In addition, the nomination process must be made transparent. For this purpose we recommend political parties collate detailed information on candidates for publication as soon as the election schedule is declared. They must also publish the criteria for nomination and the scores of each candidate against those criteria.

To ensure accountability to the voters we recommend that registered political parties be required to issue detailed election manifestos and that the party/parties in power publish annual reports of compliance to their manifestos at the expiry of their term of office. The election manifesto must become an unwritten contract between a political party and its voters. Thus, we recommend the inclusion of election manifestos and compliance reports as additional conditions for registration.

However desirable it may be to disband parties with no credibility, the EC's conditions for a verifiable support base -- either one MP in any of the past parliaments or 2% vote in the 8th parliamentary elections -- may be too stringent at this time. Moreover, the requirement of having a certain number of national offices and primary members could be met by anyone with a deep pocket. Rather, we recommend political parties be given registration before the next election if they meet requirements of internal democracy, financial transparency and accountabilty to its primary members and the voters, subject to the condition that if they score less than 3% of the votes in the 9th parliamentary elections their registration be cancelled.

We also support the EC's proposed tax benefits for contributions to political parties and the banning of contributions from foreign governments and sources other than expatriate Bangladeshis. There are serious allegations of foreign governments' contributions to our political parties. In this context, disclosing the names of all donors to political parties must be considered, although possible implications in terms of reprisals must be taken into account.

Qualification and disqualification of candidates
The commission made some important proposals regarding the qualification and disqualification of candidates running for parliamentary elections. We support the requirement that candidates seeking nominations from political parties must have been party members for at least three years, though this risks the loss of new blood in politics. We are in favour of requiring government officials and officials of foreign funded NGOs to wait three years after retirement or resignation before running, though it may be difficult to precisely define 'foreign funded' NGOs. In addition, similar requirements should be considered for officials of national NGOs, as they are also capable of unfairly influencing the voters using organisational resources. We strongly back stringent requirements on candidature of loan or bill defaulters and we favour permanently disqualifying persons convicted of corruption or other serious crimes. We also recommend tightening the existing requirement in the law which prevents those having business or contractual relationships with the government from contesting parliamentary elections. We further recommend disqualifying sitting mayors of city corporations.

Although we are in favour of restricting a candidate to contesting from only one seat, we support the commission's proposal to restrict it to three seats because of the existing constitutional barrier. However, we propose that the candidates be required to deposit Tk. 10 lakh for each additional seat, as opposed to the EC's proposed Tk. 5 lakh, and that the EC confiscates the deposited amounts for the subsequently relinquished seats.

The commission's proposed requirement for independent candidates to submit signed assent from one percent of voters is discriminatory. The principal argument behind such restrictions is to prevent so called dummy candidates -- spurious candidates running in support of major candidates -- from turning the system into a mockery. However, we expect that with the creation of the new electoral rolls the scope for fake voting will decrease and there will be little incentive for encouraging dummy candidates to run. In addition, serious penalties or fines may be imposed on candidates who receive less than three percent of the votes. However, it must be remembered in this connection that over the years extreme partisan behaviour and the politics of patronage seriously hampers our progress as a nation. Thus, encouraging independent candidates should be a priority, though there must be conditions imposed for independent MPs subsequently joining a political party.

Right to know
The EC has proposed that the nomination paper be amended to include the disclosure of the backgrounds and antecedents of candidates, as directed by the High Court judgment of May 2005. The commission's proposal also includes the publication of the documents and information submitted by candidates on the Commission's website, and the cancellation of the election of those MPs who are found, after due scrutiny, to have furnished erroneous information and documents. We congratulate the commission for this proposal. However, it should also allow the filing of counter-affidavits disputing the information submitted by candidates, and allow longer time for the scrutiny of nomination papers so that the Returning Officers could judge the veracity of the information. The commission must also clearly spell out the modality and procedures for the after-election scrutiny of the information and documents to be submitted.

In this context, we want to bring to the attention of the commission a serious problem. The disclosure requirement is intended to empower the voters to make informed choices. However, under the present legal provisions, hardly two weeks are available between the submission of the information and statements and the date of elections. Such a short time is grossly inadequate for any citizen's group to collect and disseminate candidates' information among the voters, which defeats the very purpose of disclosure. We, therefore, recommend the RPO require all candidates to file an "Intent to Run" application as soon as the election schedule is declared, which should include all relevant information about the candidates' antecedents. The commission should promptly make the information and documents available through websites and other means so that citizen groups, and ultimately the voters, can get access to them before the elections. Such a requirement, in our judgment, will discourage many undesirable candidates from entering the electoral contest for fear of being exposed.

We also appreciate the commission's inclusion of negative voting in the RPO as a means to empower the voters. However, we are against making it a mere academic exercise. Instead, we recommend that if the negative vote is the majority in any constituency, there should be a by-election with new candidates. It must noted that because of the demonstrated deterioration of the quality of parliamentary candidates over the years, the idea of negative voting has now become very popular.

We also recommend the inclusion of candidates' photographs on ballot papers, along with the party symbols.

In this context, and in order to show its seriousness about disclosures, we also request the commission to make public the statements submitted by candidates contesting in the elections that were scheduled to be held on January 22. We ask that the Returning Officers (ROs) disclose the information which we are entitled to receive under Article 44D of the RPO. We strongly feel that public interests would be better served -- which must be the overriding concern of the EC -- by disclosing the information submitted by candidates. Such an action would be consistent with the people's right to know, a principle the new government has publicly committed to uphold.

Independence and empowerment of the EC
We support the proposal to empower the EC to debar candidates for serious violation of electoral laws. We also support the proposed increase of penalty for less serious violations of such laws to a minimum of Tk. 20,000 and maximum of Tk. 100,000. At the same time, we are in favour of the proposal to allow appeal before the Commission against the acceptance of nomination papers by Returning Officers (ROs).

We are strong proponents of making the EC independent, and de-linking it from the prime minister's secretariat, but there is nothing about it in the commission's proposal. Only amending the RPO is not enough. The commission must be strengthened and made independent to ensure full and impartial implementation of the RPO. The secretariat of the commission is now viewed separately from the commission itself. Redressing this will require changing the definition of the commission in Article 2 of the RPO, and stating that the commission will include its secretariat. Subsequently, a law will have to be enacted and rules framed for governing the actual working of the commission. This may also require changing the rules of business.

We propose that the commission take its decisions unanimously, or by majority opinion, as per last January's High Court judgment. There must also be provisions for the transparency and accountability of the Commission's decisions. We are in favour of amending Article 3 of the RPO, to limit the number of commissioners to three. We further recommend that the president issue an order, as per Article 118 of the Constitution, specifying the qualifications of the CEC and the commissioners, and the procedure and terms of their appointment. A panel of qualified nominees, from which the president will make the appointment, may be identified by a committee. There may also be provisions for public hearing before the relevant parliamentary standing committee prior to the confirmation of the appointment.

Under Article 88(b) and (c) of the Constitution, the administrative expenses of the EC, and the salaries and benefits of the commissioners, are treated as charges on the consolidated fund of the government. We recommend the amendment of Article 3 of the RPO, as per the authority given in Article 88(f) of the constitution, allowing all expenses of the EC to be charges on the consolidated fund. However, there must be provisions for special audit of the expenses of the commission.

At times, government officials have been involved in electoral fraud and misconduct. We are in favour of giving authority to the EC to take swift and severe action against such officials. We have already prposed the creation of an "Election Misconduct and Disqualification Commission" to enhance the enforcement capability of the EC. The proposed Commission under the EC will not only have the power to debar candidates and punish the functionaries, but also, if necessary, to postpone and cancel elections.

Resolving election disputes
We are in favour of resolving all election disputes within six months, as proposed by the EC. However, it is doubtful whether this can be achieved by setting up additional High Court benches and setting time limits for settling the cases. No one has the authority to impose time limits on the Court. Thus, serious thought must be given to the formation of a few tribunals with retired justices for quick disposal of election disputes. Some privileges of MPs, such as their not participating in court proceedings during the sessions of the Parliament, must also be taken away.

Limitations
One of the serious limitations of the EC's proposal is that it is totally silent about election expenses, and the role of black money in elections. We support the restriction on the number of election camps of candidates. However, in our present situation, the ordinary citizens have the right to vote, but they have no representation in the Parliament because of the influence of money in elections. The situation will not change unless the use of money for buying votes by rich candidates can be stopped, and a level playing field is created for all concerned. Thus, the present Tk. 5 lakh limit on election expenses must be vigorously enforced, and there must be every effort to reduce the actual expenses.

In order to reduce election expenses, a common poster for each constituency for all candidates may be printed with public funds by ROs, using the information submitted by candidates in their affidavits. Projection meetings may also be arranged by them to reduce such expenses. At the same time, erection of gates, showdowns, setting up of booths on election days, wall writings etc, must be strictly prohibited. We, on behalf of Shujan, have demonstrated that projection meetings can be arranged, with very positive outcomes. As in neighbouring India, the commission must employ auditors to strictly monitor expenses during election campaigns. In addition, there must be serious clamping-down on vote buying, by punishing both the buyers and the sellers.

In order to put our politics on a strong and clean base, several other important reforms must also be instituted. Provision for recalling elected representatives is one such reform. Serious thought must also be given on imposing term limits for elected officials. At the same time, women's representations in Parliament must be increased, and direct elections arranged for women's seats. The much-maligned Article 70 of the Constitution must also be abolished. However, these changes will require amending the constitution, for which we will have to wait for the 9th Parliament to be constituted after the next election. However, the EC must immediately take the initiative to delimit constituencies, which is part of the commission's constitutional responsibility.

To conclude, we hope that the EC will complete its round of consultations with all concerned to finalise the reform proposals, and arrange to have it promulgated as an ordinance by the president. Instead of cutting and pasting The Representation of People Order, 1972 -- which was amended 15 times in the last 35 years -- we recommend that the law be drafted afresh. In doing so, the commission must be guided by public interest, and not by any other consideration. Holding fair, peaceful and impartial elections is the commission's constitutional responsibility. No one is the EC's "client" -- it is not the commission's job to "serve" anyone -- and none should have the right to veto the reform proposals formulated to protect and promote public interest. The commission must also realise its historic responsibility, and not abdicate its authority to anyone.

In addition, the amendment of the law and the reconstitution of the EC are necessary, but not sufficient, for fair and meaningful elections. It will also require sincerity of political parties, and their voluntary initiatives for internal reform. However, political parties will be seriously interested in reforms only if there is widespread public pressure for change. The concerned and conscientious citizens must now come forward to create the necessary public pressure.

Dr. Badiul Alam Majumdar is Secretary, Shujan (Citzens for Good Governance).