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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 243
November 05, 2011

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Law Opinion

Our electoral reforms under legal framework

Md. Helal Chowdhury

Photo: source-bdcan.ca and dalje.com

Election is one of the inevitable pre-requisites of democracy. So, free and fair election at any level is a must for an ideal and sustainable democratic system. For this reason, a standard electoral process is very important for smooth running of our government, state mechanism, development, national growth and a peace-loving foreign policy. The recent constitutional amendments and legal changes concerning our electoral process are very much significant for achieving goal we enshrined in our constitution.

Recent amendments of constitution
The Constitution of Bangladesh (Article 118) gives the provision for setting up an Election Commission (EC) for the superintendence, direction and control of the preparation of electoral rolls for election to the office of the President and to the Parliament, and the conduct of such elections in accordance with the Constitution. According to the Constitution, the EC is independent in the exercise of its functions and subject only to the Constitution and applicable laws. Bangladesh EC is constitutionally responsible for the conduct of elections in a free and fair manner. To ensure credibility of such elections, transparency and accountability are required at all stages of the electoral process. For strengthening and for smooth running of the election commission, 15th Amendment of 2011 has fixed up the number of election commissioners. That has removed previous ambiguity and rendered a clear structure of election commission.

Recent amendment has successfully removed the possibility sudden stay of electoral process by the decisions of courts. Previous experience reveals that in many cases electoral process had to face stagnation for the decision of courts pronounced without hearing the election commission. New Amendment as far as it concerns article 125 of the Constitution provides:

….A court shall not pass any order or direction, ad interim or otherwise, in relation to an election for which schedule has been announced unless the Election Commission has been given reasonable notice and an opportunity of being heard……”.

The linguistic expression shows that natural justice has been upheld with regard to the Election Commission. It is one of the ancillaries of natural justice that no decision will be passed against any person or institute without giving him/it the opportunity of hearing.

Legislative Reforms: Judicial Magistrates and Mobile Courts give a New Dimension
The Electoral Laws govern Presidential, Parliamentary and Local Government Election. These laws are, in most cases exhaustive. These try to address problems and issues relating to elections. Moreover, we have numerous laws concerning the elections of local authorities. We had to adopt laws because of our four tiers of local government authorities. At the same time, we have differentiated urban local authorities and rural local ones. However in every election, saving Presidential one, we have introduced the provision for appointment of Judicial Magistrates. They take congnizance of the offences of grave nature. In most cases, the judicial magistrates roam about the electoral areas like Mobile Courts with striking force. Only the presence of judicial magistrates to a large extent influence positively in the congenial atmosphere for the election.

Introducing Mobile Courts in the election is another innovation in our electoral process. The executive magistrates do function in the mobile courts. Not only that, they also work together with the local administration to conduct the electoral functions. They discharge their duties in the Mobile Courts for longer period than the judicial magistrates with regard to the offence of petty nature.

Code of Conduct, Registration and Accounts of Political Party's Fund: Dynamic Paradigms
Activities and conduct relating to campaign is one of the most important prerequisites for free and fair election devoid of violence. The Conduct of Election Rules, 2008, The Code of Conduct for Parliament Elections, 2008; City Corporation (Code of conduct) Rules, 2010; Code of Conduct for City Corporation Elections, 2008; Code of Conduct for City Corporation Elections (Amendment), 2008; Code of Conduct for Upazila Election, 2008; Code of Conduct for Pourashava Election, 2010; Code of Conduct for Union Parishad Elections, 2010 are the laws which have positive influence on the environment of every type of election.

The recent changes in the electoral laws address the issue of campaign finances. These provisions set limits on campaign spending and donations to candidates.

The candidates are to keep records of donations and expenditures and to make such records available to the election commission upon request. However, the mechanism for policing the spending and contribution limits is still not very strong because of high rate of illiteracy and extreme level of poverty.

Electronic Voting System: A Technolo-gical Revolution in Electoral Process
Electronic Voting System introduced in the City Corporation Election. This is a revolution in the context of traditional voting system. Rules of Electronic Voting Machine for City Corporation Election can be considered as a milestone as it has incorporated the technological development in the electoral process of Bangladesh.

Photograph based National Identity Card
UNDP conducts some programs that focus on stakeholder consultations. This inclusive dialogue processes has proven to be an effective approach to conflict prevention programming.

Most notable involvement of UNDP in Bangladesh was in conducting the sensitive work of preparing a fresh voter register. It happened for local perceptions of neutrality as well as for its credibility to co-ordinate donor contributions.

The most intricate, sensitive and difficult matter of the general election, 2008 was a plan to create new electoral rolls with photographs. It was a reform long asserted by civil society and political parties. The Election Commission take resort to the Armed Forces as an implementing partner, since it is the only organization in Bangladesh with the technical skills, logistic support and manpower to complete the project in a reasonable timeframe. Assistance from international donors was co-ordinated by UNDP, which also provided technical assistance to the Election Commission. Civil society groups made a contribution through extensive voter and civic education. By July 2008, over 81 million Bangladeshis were registered as voters. Voters' visit to registration centers and all necessary jobs were organized and managed by the Armed Forces, to complete the registration process with photograph. Registered voters were issued a National Identity Card (NID) with a photograph.

The careful and transparent manner in which registration was implemented generated high levels of public trust in every future election. The new electoral rolls together with a photograph based National Identity Card (NID) is one of the greatest achievements not only in the electoral process but also in the history of Bangladesh after independence. And the UNDP has become unforgettable partner of this historic achievement.

Bangladeshis can feel proud that in the recent national and local elections people exercised their will almost freely and fairly in a very transparent manner credible nationally and internationally. That has been possible due to the above mentioned changes and reforms together with the co-operation from the general people. The people of Bangladesh have started to bear the dream of freedom and fairness devoid of violence, suspicion and disbelief in every level of election.

The writer is Deputy Secretary (Law), Bangladesh Election Commission.



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