Dhaka Thursday February 25, 2010

Does the Election Commission exercise all its powers?

Mohammad Abu Hena
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THE Election Commission is charged with certain responsibilities of great magnitude and overwhelming national importance. The recognition of this importance has occasioned the creation of this body, not through any simple enactment of parliament, but through the country's supreme law, namely, the Constitution. The creation of the Election Commission through the Constitution is obviously a guarantee against vulnerability and also an assurance for the discharge of its obligations without interference.

The Bangladesh constitution spells out clearly the functions of the Election Commission (Article-119). The main thrust is on the conduct of free and fair national and also local elections. To this end, the specific functions include the preparation of accurate and updated electoral rolls, delimitation of constituencies, the holding of parliamentary and presidential elections and such other responsibilities as are prescribed by law (these are, in effect, the holding of local government elections).

A close look at these functions may indicate how gigantic and critical these operations are in range, impact and comprehensiveness.

What are really the elements of free and fair elections? The most essential element is the existence of an independent, neutral and efficient election management body (EC). This body has to address a series of important issues, sometimes simultaneously, sometimes sequentially, to deliver acceptable elections.

During the preparatory stage, complete transparency in the matter of organising elections has to be maintained and all participating political parties taken into its confidence by the Election Commission. The issues, required to be addressed, include updating a reasonably accurate voters' register, availability of adequate resources to equip electoral offices and to organise elections, timely procurement and management of election logistics, acceptance or rejection of nomination of candidates, appointment of non-partisan election officials and arrangement of their training, proper selection of thousands of polling stations, formulation of an elaborate and meticulous security plan, covering not only the polling day, but also pre-poll, campaign and post-poll periods, regulation of election expenditures of candidates, ensuring adherence to the election code of conduct, voter education programmes, security and management of polling stations on the polling day, counting of votes in the presence of representatives of candidates and observers, transmission of results to the Election Commission.

During the entire period a continuous dialogue has to be maintained with the stakeholders of the election, namely, the political parties and a level playing field needs to be ensured for the players. For the sake of transparency, the media and the observers should be allowed to play their respective roles and maintain regular liaison with the EC towards a good, credible election.

The Election Commission at its whims cannot perform these functions. There are legal instruments, however, inadequate or retrogressive, which empower the EC to work towards the accomplishment of these functions. The Election Commission derives its powers and authority mainly from the constitution, also from the Representation of the People's Order, 1972 together with the Rules made thereunder and the case law.

The Constitution defines the status of the Election Commission as independent in the exercise of its functions. The commissioners cannot be removed from office except in the manner and on the like grounds as a judge of the Supreme Court.

The constitution has categorically vested the authority of ensuring free and fair elections in the EC through superintendence, direction and control of the electoral rolls. It also stipulates that all executive authorities shall extend all necessary assistance to the EC in the discharge of its functions. In terms of Article 120, the President is required to make available to the EC such staff as may be deemed necessary by the EC. The Representation of the People's Order (RPO) has granted, by and large, comprehensive powers to the EC in organising elections on a sound footing.

These powers cover the whole range of electoral activities, beginning with the appointment of Returning Officers up to the counting of votes. Some such powers, notably, involve selection of polling personnel and polling stations, code of conduct for the candidates during the campaign, regulation of election expenses, maintenance of law and order including security of polling centres, counting of votes, action against recalcitrant election officials.

The powers cited above are not apparently exhaustive. The big question, however, is whether the Election Commission has all through been acquitting itself well and been able to live up to the expectation of the people. Since our independence in 1971, there have been so far as many as nine parliamentary elections in 1973, 1979, 1986, 1988, 1991, 1996 (February), 1996 (June), 2001 and 2008 in addition to three presidential elections and three referendums.

There are many who ask themselves how many of them can be labelled as legitimately fair and acceptable. Here, of course, we should exercise caution and guard ourselves against possible pitfalls and desist from making sweeping generalisations. I, for one, would not be diffident in asserting that not all our national elections have been bad and suffer from lack of credibility, particularly those held in the last two decades since 1991 with the exception of the sixth (February 15, 1996,) parliamentary election. But how is it that many of the country's elections fall short of our people's expectation? Is this because of the willfulness or incompetence of the election machinery or the limitations or weaknesses of the election law? This question plagues us as there are wide-spread allegations of massive corruption, fraud and malpractices characterising national elections prior to 1991.

The following extract from an article captioned "General Elections in Bangladesh" which appeared in the "Handbook on Election Reporting" (published by the Society for Environment and Human Development, second edition: 2001) sums up the public perception: "It is, indeed, a matter of great regret that voters in this country witnessed a number of abusive and fraudulent elections. In fact, 'vote piracy', 'vote hijacking', 'media coup' (media manipulation of election results) has become a part of Bangladesh's election culture [...] However, general electoral abuses were minimal in the fifth and the seventh parliamentary elections, which were held under a caretaker government".

Incidentally, 5th and 7th parliamentary elections were held in 1991 and June 1996 respectively.

A rigged election results from manipulations of various kinds. One such manipulation is 'vote piracy' -- casting of false votes on a massive scale by capturing polling booths by force. Such a gross malpractice is possible when authorities remain blind willfully or under pressure and acquiesce in its commission. This makes a mockery of election and no election commission worth its name is supposed to be a party to it. It is tragic that we have had to live with this for almost two decades. There are laws to deal adequately with such situations, either to forestall or stop fraudulent polls. But the election machinery preferred to remain quiet.

Things began to stir from the beginning of the nineties. The question of reforming the Election Commission and the relevant election laws to strengthen the EC started coming up before the political parties and the civil society. Discussions and debates on reforms gained momentum from the later half of the nineties.

The civil society and the Election Commission played pre-eminently active roles in the formulation and implementation of electoral reforms. Proposed reforms embrace a wide range of core issues involving the independence of the EC, mode of appointment of the CEC and other commissioners, appointment of EC staff, mandatory registration of political parties, ceiling and regulation of election expenditure by candidates, role of the electronic media, code of conduct, disqualifications for participation in the election, power of EC to cancel election results etc. Some of the proposed recommendations were accepted by the last caretaker government and necessary amendments were made to the relevant laws and rules. Some are, however, yet to be approved.

The question of reforms of electoral laws dominated discussions and deliberations in intellectual and political circles in order to strengthen the electoral process by bringing the relevant laws in conformity with the new challenges, the ultimate goal being to consolidate democracy in the country.

These efforts are, indeed, admirable and certainly deserve appreciation. But what happens when the legal provisions are not brought into operation at the right time? A law is meaningful only when it is put to effective use. Its merit lies in its practical application. It is not enough to have powers. One has to know how and when to use them to achieve the purpose for which they are intended.

Sometimes we hear people say that the Election Commission is a mighty institution enshrined in the Constitution -- an independent body with all powers necessary to ensure the delivery of good elections. Yet, they say, on occasions the EC fails in applying all its powers. I think, this statement cannot be true of all successive Election Commissions in the country since independence. In the case of some, there may be an element of truth in this.

Some Election Commissions, for example, did not have the right perception of the independence of the EC in the past. They allowed themselves to be susceptible to the influences of the sitting government. The commission's position is alleged to have been that of a lame duck. It is not the commission, but the government that held sway over the election through its functionaries. The constitutional guarantee of the EC's independence continued to be thrown to the winds for a long time.

Some time back there was a national election in which a total number of 1939 candidates participated. As per law all candidates are required to submit statements of assets and liabilities along with sources of funds before the election and also submit returns of election expenses after the election within prescribed time-limits to the respective returning officers.

Non-submission of such statements calls for the filing of cases leading to rigorous imprisonment up to 7 years. Available statistics say that 352 candidates did not submit statements of assets and sources of funds, while the number of candidates who did not submit the returns of election expenses was 466. Cases filed by the returning officers for non-submission numbered only 40.

The campaign period before the election is a crucial and turbulent time. Candidates and their parties try their best to reap maximum benefits. (To hold them in check a code of conduct was formulated for the first time under law before the 12 June 1996 national election). During the by-elections when there is already a party in power, enforcement of the code of conduct becomes more difficult. I recall having written to the prime minister before every by-election requesting her good offices in the enforcement of the code of conduct, also requesting her not to visit the concerned constituency after the declaration of the election schedule. I do not know if the practice of making this request is still in vogue. Compliance with the code of conduct is of critical importance to ensure the conduct of free and fair elections. The code represents dos and don'ts for the players.

Numerous allegations are reported to the EC for breach of the code by opposing parties. It is imperative for the EC to attach top priority to the widest possible publicity of the code and deal ruthlessly with all violations without any discrimination. Some ECs are alleged to have been soft and discriminating. In 2008 the code of conduct has been made more stringent through the amendment of RPO, providing for even cancellation of the candidature by the EC for any serious violation of the code. Many have welcomed this amendment and look forward to its implementation when occasions so arise.

It is not infrequently that we face another important question from the people: Why doesn't the EC ensure compliance with the ceiling of election expenses by the candidates? Why doesn't EC go for curbing the influence of money in the election? These are, I believe, legitimate questions. The Election Commission has to come up with a workable strategy to regulate and monitor the election expenses of candidates and political parties during the campaign period. As a matter of suggestion, the EC may consider appointing Election Expenses Observers to monitor the election expenses of the contesting candidates.

The Representation of the People's Order (RPO) has recently been amended by inserting, among others, provisions for registration of political parties to ensure their proper functioning and accountability. Registered political parties are now required under the law to maintain proper accounts of all their income and expenditure for prescribed periods in connection with elections and submit expenditure statements as well as statements of party funds to the Election Commission. Non-compliance invokes warning or fine or even cancellation of registration. From newspaper reports it appears that political parties are not demonstrating interest in furnishing such statements. No worthwhile action by the EC, as reports go, is yet visible.

Needless to say, the expectations of the people from the Election Commission are very high. They anxiously look forward to its quality performance which, they expect, may lead to the election of persons of their own choice and to the vibrant functioning of democracy in the country.

The author is a former Chief Election Commissioner.

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