Dhaka Thursday February 25, 2010

How assertive has the Election Commission been?

Manzoor Hasan

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afp

IN Bangladesh political competition has always been extremely intense and it has determined the manner in which various political events have unfolded since its independence in 1971. Despite its chequered history the electoral process in Bangladesh has played a key role in setting the future direction of politics, particularly between elections. Under the Constitution of Bangladesh (Article 119), the Bangladesh Election Commission (BEC) is responsible for administering direct elections to the Parliament and at all levels of local government. The success of an election depends to a large part on the independence, capacity and impartiality of the Election Management Body of a particular country. In order to address the profusion of electoral malpractices the constitution was amended in 1996 to insert the novel idea of a caretaker government with the task of holding free and fair elections within a period of three months. Bangladesh was lauded for this imaginative governance innovation but the question many asked was 'would the provision of caretaker government have been necessary if the BEC had been assertive in exercising its constitutional powers?'

Bangladesh Election Commission
BEC is a constitutional body mandated to conduct elections in a free and fair manner. The Constitution has specified its composition. The Commission is usually comprised of a Chief Election Commissioner (CEC) and two commissioners. The term of office of an election commissioner is five years from the date on which s/he enters office, and the commissioner can only be removed from his/her office in the same manner as applied in the case of a judge of the Supreme Court of Bangladesh.

The BEC has a Secretariat, which renders all necessary assistance to execute the decisions and orders of the Commission. It is headed by a Secretary to the government. The Secretariat is located in Dhaka and has field offices at different levels. An Electoral Training Institute was established in 1995 to create an efficient election management system as well as to raise skills and awareness among the personnel involved in the electoral process.

Constitutional independence and accountability
The Constitution has granted the Election Commission a high degree of independence in the exercise of its functions. The Representation of the People Order 1972 (RPO 1972) has empowered the Commission to undertake wide-ranging functions. These provisions imply that the Commission is free from influence of the executive in the exercise of its powers and all powers reside in the Commission and not in any individual. However, the BEC still lacks an overarching law, which clearly states the powers of the BEC in relation to the government and an unambiguous redressal mechanism if the Government fails to comply with or distorts the implementation of the BEC's directives.

Furthermore, despite having the constitutional provision (Article 118(1)) for enacting a law governing appointments of the CEC and the ECs, no such law yet exist. As in the case of other decisions and appointments to senior constitutional positions, the President acts on the advice of the Prime Minister under Article 48(3) of the Constitution. This arrangement provides the opportunity for politicising appointments of the CEC and ECs. As an example one can cite the events leading to the aborted elections scheduled for January 2007, and the role of the then CEC and ECs. Considering the importance of leadership in independent functioning of the Commission, any future Act should specify qualifications and ineligibility criteria for such appointments. But despite the best of legal framework the prestige and perception of any Election Management body will depend on the freedom and space given to it by the executive. The experience of the present BEC since the appointment of the incumbent CEC and ECs in 2007 and their conduct of the 2008 elections is a testimony of how assertive they can be despite many shortcomings, as discussed earlier.

Assertiveness of any institution depends on the degree of independence, on the one hand, and on the rigour of accountability, on the other. Under the new Act of Parliament (Election Commission Secretariat Act, 2009) pre-expenditure accountability of the BEC has been relaxed. However, to balance this budgetary independence with accountability, the role of the Comptroller and Auditor General (C&AG) and parliamentary committees should be strengthened. The BEC could also assert itself by presenting its performance to the Parliament and the general public. The BEC could do this by publishing and presenting an annual report to the Parliament through the President. The report should be candid. It should contain information about the cases where the BEC sought assistance from the executive, but such assistance was not forthcoming or was problematic. A Special Committee of the Parliament can scrutinise the report. A Member of Parliament can raise a petition as per Rule 100 of the Rules of Procedure of the Parliament against any irregularities of the BEC based on the report.

There are other elements of accountability. Political parties and citizens are the major clients of the BEC. Therefore, the BEC's activities and performance should be transparent to them. The BEC has started consulting political parties recently. But it has no formal channel of communication to inform the parties about its actions and to receive feedback from them on a regular basis. At present, the BEC has no accountability for service delivery to citizens other than through a prerogative writ viz. public litigation, which is expensive and lengthy. The BEC can assert itself by taking initiative to increase the level of accountability by creating a separate wing to establish regular communication with political parties. The citizen/service charter should be developed in line with the Right to Information Act, 2009 (Act no. 20 of 2009).

Assessment of the Performance of the BEC
(i) Electoral Code of Conduct
The BEC formulated a Code of Conduct for Political Parties and Candidates in 1996 and updated it in 2008. The Code fixed the upper limit of electoral expenditure at Tk. 15, 00,000 (1.5 million) for any constituency. A Transparency International Bangladesh (TIB) survey, conducted in 44 constituencies on the process of ninth national election held in December 2008, revealed that, on average, a candidate spent about Tk. 44 lacs (4.4 million) during the period from the last day of withdrawal of nomination to the election day. The survey also disclosed that 77 out of 88 candidates (87.5 per cent) from 44 constituencies spent more than TK. 15, 00,000. The TIB Election Process Tracking 2008 study, covering 40 constituencies, found that a total amount of Tk. 13,865,000 (13.86 million) was spent on donations and gifts by candidates, which is prohibited by the Code. The BEC has failed to assert itself in monitoring electoral expenditure mainly due to lack of technical capacity. It is to be noted that the Election Commission of India employs auditors to strictly monitor all electoral expenditure during election campaigns.

(ii) Backgrounds and antecedents of candidates
A High Court judgment made the disclosure of information on antecedents of candidates binding. In the interest of disclosure the BEC had put on its website documents and information submitted by candidates, and was empowered to cancel the election of those MPs who were found, after due scrutiny, to have furnished erroneous information and documents. Despite huge public demand the major political parties have failed to promote 'clean' candidates. Out of 293 persons elected from 299 seats 139 (47 per cent) are accused of having criminal pasts and 92 (31 per cent) are accused of engaging in criminal activities at present. SHUJAN (Citizens for Good Governance) has identified at least 54 candidates with corruption charges. This is yet another area where the BEC can be more assertive in terms of enforcement of the High Court judgment.

(iii) Changes in party constitution and registration of political parties
During the last Caretaker Government the RPO 1972 was amended to ensure registration of political parties with the BEC. The two major political parties held their national councils and amended their constitutions. The BEC raised objections to two provisions of Bangladesh Awami League (BAL) constitution submitted to the Commission and requested the BAL to amend these provisions. The BAL complied - a good example of BEC assertiveness, and how parties can be persuaded to comply with laws. Hopefully, this trend will continue.

(iv) Delimitation of constituencies and electoral rolls
In face of opposition from major political parties the BEC has shown determination in redrawing the boundaries of parliamentary constituencies in 61 districts based on density of population in an effort to maintain an average size in terms of numbers of voters. According to Delimitation of Constituencies Ordinance 1976, delimitation of constituencies is to be done on completion of each census. Such actions have been vindicated by subsequent High Court decisions. The BEC, with the wholehearted support of the armed forces, has presented the country with a flawless electoral roll. This has been a milestone achievement that will reduce political bickering over fake voters.

Conclusion
The confrontational nature of politics has made election management quite difficult in Bangladesh. The BEC has had to navigate very carefully by way of securing working corporation of major political parties. This laissez-faire policy has encouraged commercialisation and criminalisation of politics. Therefore, a more proactive BEC is a demand of the time for consolidating democratic process in Bangladesh. Despite some significant reforms recently undertaken there is still need for further assertiveness on the part of the BEC. This will require significant changes to the structure, management and the process through which the BEC functions and interacts with its stakeholders.

Manzoor Hasan,Barrister-at-Law, is Director, Institute of Governance Studies Brac University

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