Free and fair?

Badiul Alam Majumdar looks at the effects of money, muscle and influence on elections in Bangladesh

Democracy is rule by the consent of the people. Elections are the only means to attain that consent. In fact, it is the only non-violent and civilised means of transferring governmental powers. Thus, elections are a prerequisite for a democratic polity. However, merely holding periodic elections does not establish democracy -- they must be free, fair and meaningful. Elections are free and fair only if they are not manipulated by money, muscle and official influence. They are meaningful only if free and fair elections lead to improvement in the quality of elected representatives and, consequently, governance. Unfortu-nately, money, muscle and official influence played important roles in Bangladesh's elections over the years, and this incresingly lowered the quality of our elected leaders.

Effects of money
In Bangladesh, money influences elections in several important ways. One obvious and widely prevalent use of money is the buying of nominations from established political parties. This seedy act is known as mononoyan banijya or "nomination trade." Candidates often pay huge sums of money to party bosses, and sometimes to several leaders of the party. At times, larger parties engage in bidding wars for forming electoral alliances with smaller parties.

Obtaining nominations by paying bribes to party leaders has become a widespread practice in Bangladesh in recent years. It is alleged that, prior to the election that was scheduled to be held last January 22 but was cancelled, Awami League nominations in 50 seats were sold for a minimum of Tk. 5 crore to a maximum of Tk. 20 crore each, resulting in illegal trans- fers of huge sums of money (Prothom Alo, January 14, 2007). Thus, in the past, through such nomination trade, many corrupt businessmen and black money owners became Members of Parliament (MPs), making this august institution a sort of club of many unsavoury characters.

There are also serious allegations of illegal inter-party transfers of huge sums of money prior to the cancelled elections of January 2007. It is alleged that Awami League agreed to pay Tk 60-70 crore, of which Tk. 3.5 crore was paid as advance, to bring General Ershad's Jatiyo Party into the fold of the 14-party grand alliance. On the other hand, BNP allegedly offered to pay Tk. 50-60 crore, of which Tk. 2 crore was paid in advance, which had to be returned when the deal fell through (Prothom Alo, January 15, 2007). Interestingly, both Awami League and BNP were part of the 15-7-5 party alliance which brought down the Ershad regime in 1990, and the alliance members vowed never to embrace Ershad or his cohorts and bring them into their fold. This was yet another blatant example of our political parties not keeping their word.

Buying of votes is another important use of money in elections. Candidates often pay cash, and sometimes give items such as saris, lungis and other things for buying votes. Voters are almost always entertained with drinks and snacks, and sometimes more. Widespread poverty and lack of voter awareness makes such vote buying rampant. Sometimes middlemen are used for this purpose. Buying votes is an illegal act, and is considered to be a "corrupt practice" under The Representation of People Order, 1972 (the Order), and it is a punishable offence, the punishment being rigorous imprisonment of 2-7 years and also fines.

Yet another use of money in elections is the buying of official influence. Sometimes returning officers, polling officers, law enforcement personnel etc. Are bribed. In the same vein, the services of hooligans and musclemen are bought, and weapons are leased to influence election results.

Sometimes, the services of "dummy candidates" are bought with money. Setting up dummy candidates is a recent phenomenon in Bangladesh. In this arrangement, one or more spurious candidates run incognito in support of each major candidate, and the polling agents of such candidates support the major candidates' attempts to cast false votes. These agents also support their benefactors in cases of disputes in vote counting, declaration of results etc. At times, money is used to buy the polling agents of major opponents and cause other mischief. In a notoriously rigged by-election during the latter part of the last government, for example, major candidates allegedly gave huge amounts of money to a top political party leader to buy the party's influence for the day of the election.

Money in excess of the allowable limits is often used for campaign expenses, which is currently Taka 5 lakh. Money is also utilised for unallowable election expenses, such as wall writings, colour posters, use of vehicles for transporting voters, entertaining voters etc. Excessive election expenses are possible because of non-enforcement of electoral laws by the Election Commission (EC). For example, of the 1,939 candidates who contested the 8th parliamentary elections in 2001, only 1,473 submitted election expense reports. The remaining 466 candidates did not do so, thereby violating section 44C of the law, which is treated as an "illegal practice" under section 74 of the order and is punishable with a rigorous imprisonment of 2-7 years and also fines. However, nothing was done against the aspiring or actual lawmakers who were lawbreakers.

More importantly, all those who complied with the requirements of the law and submitted the required statements indicated that they did not exceed the expense limit of Tk. 500,000. However, it is common knowledge that in all recent elections all elected MPs exceeded the expense limit and, thus, they began their lawmaking career with false declarations. Also, even though the election expenses are, by tradition, counted from the date of declaration of the election schedule, many candidates spend huge sums of money prior to that date for staging meetings as well as printing posters and portraits etc.

How much money parliamentary candidates, especially rich candidates, spend in election campaigns can be ascertained from a study conducted by Transparency International-Bangladesh (TIB) during the three months prior to the elections that were to be held on January 22, 2007. TIB monitored the election expenses of 122 candidates in 40 constituencies and found that, as of January 3, 2007, the candidates had spent a total of Tk. 185,500,000, or an average of Tk. 1,520,000. However, the candidates of other than the two major political parties -- Awami League and BNP -- spent only minor amounts. One Awami League candidate alone, for example, spent Tk. 16,700,000, and a lone BNP candidate spent Tk. 19,400,000 during the study period. Much of these amounts was spent for holding rallies and public meetings, setting up election camps, paying campaign workers, and transportation costs, some of which are not allowable election expenses under the law.

It should be noted that the above figures are only for visible election expenses. There are also many types of invisible expenses, such as payments for buying nominations and other bribes. In addition, they which would have been substantial. Thus, TIB estimates give a rough indication, but not a complete picture, of election expenses of parliamentary candidates. It should be noted in this context that major parties are also awash in cash, and spend big money for their own activities, some of which are illegal. (Prothom Alo February 9, 2007) reported that Awami League requires about Tk. 12 crore for regular operations of the party each year. BNP, on the other hand, spends about Tk. 15 crore annually. These huge sums of money are often extorted from corrupt businessmen or are collected from them in exchange for "selling" official favours, as well as from foreign sources. For example, the former state minister for home during the last regime, who is now in jail, is reported to have alleged that BNP received Tk. 300 crore from three foreign countries prior to the 2001 elections. It may also be noted that some of Bangladesh's top political leaders are now in custody on charges of extortion.

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Muscle power
Influence of muscle power on elections is a fact of life in many countries, including Bangladesh. Muscle power is normally used for the following ends: intimidating opposing candidates, their representatives and supporters; driving away the polling agents of oppo- political sing candidates on election day; threatening the poor and minority voters to prevent them from voting; snatching ballot boxes; stuffing ballot boxes; disrupting the law and order situation around the polling centers to slow down the voting rate, or chasing away voters or stopping voting altogether; capturing polling centers; disrupting the counting of votes or destroying ballot papers or result sheets; altering the polling results and the broadcasting of those results; and so on.

Muscle power is exercised both during the pre- and post-poll periods. Violence leading to death and injuries is often the outcome of the demonstration of raw muscle power. During the 8th parliamentary elections held on October 1, 2001, terrorism and violence were used against opposing candidates and minorities even in the days following the elections. The reported deaths and injuries during the July 15 through October 10, 2001 period, which was the period of a non-party caretaker government (CTG), pieced together by the Society for Environment and Human Development from major newspaper reports, show that at least 217 persons were killed, including one woman, and 6,686 were injured in 415 major cases of violence across the country. Of those killed, 93 were identified as leaders and supporters of Awami League and its front organisations, 43 belonged to BNP and its front organisations, and the remaining 81 were innocent people. However, these figures do not tell the full story because many violent incidents were not reported.

Dr. Waresul Karim designated 58 out of 300 seats as terrorism- prone constituencies based on their crime records at the time of the 8th parliamentary elections, and studied the election results of those constituencies. Eleven constituencies which had arguably been affected most by terrorism were designated the "Core Terrorism Prone Areas" (CPT). Another 19 constituencies were classified as "Medium Terrorism Prone Areas" (MTP). Still another 28 constituencies were categorised as "Broadly defined Terrorism Prone Areas" (BDTP). Election results show that Awami League won 3 seats in 1991, 7 seats in 1996 and only 1 seat in 2001 in the 11 CPT areas. On the other hand, BNP won 7, 3 and 10 seats, respectively, in the same areas. In the 58 terrorism prone area seats, Awami League bagged 20, 38 and 7 seats respectively, while the BNP alliance won 31, 17 and 49 seats. Clearly, the 4-party alliance won more seats in 2001 in all terrorism prone areas. According to Dr. Karim, two factors affected the performance of Awami League candidates in 2001: the alliance arithmetic (i.e. BNP's formation of an alliance with Jamaat and two other parties) and the more unfavourable "violent" image of their candidates in those constituencies. Thus, while widespread violence and terrorism are a reality in the electoral politics of countries like Bangladesh, voters, given the chance, appear to have voted against candidates with such images.

Official influence
Neutrality of the government in power, and of other relevant institutions including the Election Commission, is a prerequisite for free, fair and acceptable elections. Undue official influence can, in fact, cause havoc on election outcomes. Bangladesh's experience shows that such influence can work at every step of the election process and distort election results.

In Bangladesh, one of the sources of unwarranted official influence was the lack of independence of the EC. Although the EC was set up as an independent constitutional body in Bangladesh, it was brought under the president's secretariat during the Ershad regime as part of an administrative reorganisation scheme. This clearly enabled the chief executive of the republic to interfere in its functioning.

The use of the EC for partisan ends has always been a problem in Bangladesh, but it was more so during the last government. For example, during the early part of The 4-party alliance government, the secretary of the EC was totally partisan, and he and some of his colleagues often pursued their partisan interests even by defying the commission. He was also instrumental in hiring dozens of ruling party cadres as grassroots level election officers, some of whom were later released by the reconstituted EC. The request of the chief election commissioner, who was totally frustrated, to transfer the secretary was not also heeded by the government. This particular person, it may be noted, was later rewarded by the last government by elevation to the position of election commissioner.

In Bangladesh, the appointment of election commissioners has also been a means of exerting influence on the elections. During the Awami League regime, one former government official, who took a public position against the first BNP government, was appointed election commissioner. However, all the appointments of the 4-party alliance government were more or less partisan, and some were nakedly so. In fact, the Chief Election Commissioner Justice M.A. Aziz's appointment, made on partisan considerations, was recently found to be unconstitutional by the High Court. More seriously, one of the commissioners even sought the BNP nomination for parliamentary election.

During the last regime, the partisan EC made a mess of the prepara- tion of the electoral roll, allegedly padding the numbers with the fake registration of over one crore voters. The electoral roll issue became so controversial that it had to be litigated in the Supreme Court of Bangladesh and updated several times, but was still rejected by neutral observers. It goes without saying that the manipulation of the electoral roll is an important means of influencing election results.

Official influence is also blatantly used in resolving election disputes. For example, none of the election petitions filed after the 2001 elections were resolved within the terms of the Parliament. Both the EC and the judiciary were influenced by the government for this purpose.

Another source of influencing electoral outcomes is the delimitation of constituencies. Fortunately or unfortunately, parliamentary constituencies have never been delimited in Bangladesh. Official influence is also exerted in Bangladesh in the appointment of returning officers, assistant returning officers, presiding officers and polling officers etc.

Yet another popular means of influencing election results is through promises made by political parties, especially by the ruling party. In Bangladesh, ruling parties normally go through what is called the "politics of laying foundation Stones" at the end of their term of office. This is inte nded to cater to specific groups and constituencies for gaining their support during elections.

Bangladesh has a system of an unelected non-party caretaker government (CTG), with the responsibility of aiding the EC for holding free and fair elections, which, interestingly, amounts to using an undemocratic system to save democracy. In any event, the neutrality of the CTG is an essential pre-condition for fair elections as it can conceivably influence election results by manipulating the deployment of government officials and security personnel. The neutrality of the CTG which assumed office after the expiry of the 8th Parliament was seriously questioned. The partisan president, who was nominated by the 4-party alliance, became the chief adviser and made controversial appointments to his council of advisers as well as to the Election Commission. The partisan stance of the CTG became so controversial that it could not be sustained, and it was, indeed, replaced on January 11, 2007 by a new interim government. In recent years, a naked case of official influence took place in the implementation of an historic court judgment on disclosures. In May 2005, the High Court Division of the Bangladesh Supreme Court passed a judgment requiring candidates in Parliamentary elections to disclose

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with their nomination papers information about their education, income, assets, loans, criminal records etc. in the form of affidavits. Going out of the normal procedure, a third party, who completely misrepresented himself, was allowed to file a public interest litigation to appeal against the judgment after the judgment was already implemented in five by-elections. Later, on December 19, 2006, only two days before the filing of the nomination papers for the elections scheduled for January 22, the vacation judge of the Appellate Division unilaterally issued a stay on the judgment, although a 4-judge regular bench of the Appellate Division, headed by the chief justice, did not do so earlier. In unmatched haste, the order was transmitted to the EC on the same day and the Commission instantaneously implemented it.

Subsequently, the relevant bench of the Appellate Division accepted the appeal and, thus, overturned the entire High Court judgments, in spite of the fact that the appellant objected to the disclosure of only educational qualifications. After loud protests from the opposing lawyers, the court, however, recalled its judgment in a few hours, staging an unprecedented drama. The saga of undue official influence on the judiciary with respect to this important case appears to have ended, as the full court bench of the Appellate Division recently found that fabricated documents were used to file the appeal, which upheld the High Court judgment. Needless to say, under the influence of the government in power, undue means, deception and fraud were committed at almost every step of the way of the appeal process of this important case.

To conclude, it is clear that money and muscle have been widely used in Bangladesh to influence election results. This helped create a government of, by and for the vested interests in the country. It fact, we seem to have the best democracy that money and muscle can buy. Undue official influence on the election machinery and other relevant institutions over the years pushed things further to an intolerable and unsustainable level. It is no wonder then that our democratic system collapsed on January 11, 2007. If we are to now redress the situation, we must urgently embark on systematic electoral and institutional reforms.

Badiul Alam Majumdar is Secretary, Shujan.