Sunday, March 17, 2013
Which way towards free, fair and meaningful elections?
Dr. Badiul Alam Majumdar
Photo: Rashed shumon
Article 11 of Bangladesh Constitution states that “The Republic shall be a democracy…” Democracy invariably requires the consent of the people, obtained through elections. Thus, elections are very essential initial steps for democracy, although they are not the only steps. In fact, elections are necessary but not sufficient conditions for democracy.
Elections must be held at all administrative levels to ensure people’s rule in all spheres of the society. However, the mere holding of elections of the legislature and local government bodies is not enough for democracy to flourish and function effectively — elections must be free, fair and meaningful. Free and fair elections obviously require that citizens have unhindered rights, subject to law, and are free to choose other citizens to represent them and act in their interests. As Justice H.R. Khanna, in the famous Indira Nehru Gandhi vs. Raj Narayan case argued in the Indian context, the principle of free and fair election is an essential postulate of democracy which in turn is a part of the basic structure of the Constitution of India [AIR (1975) SC 2299].
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Elections are meaningful only when they create opportunities for individuals who are honest, clean and dedicated — dedicated to people’s wellbeing. Such opportunities arise only when there are clear disclosure requirements by candidates, adequate scrutiny of the disclosed information and the empowerment of voters with the scrutinized information. The Indian Supreme Court, in PUCL and others vs. Government of India [(2003) 4 SCC] even went a step further and observed that elections are not even free and fair unless the antecedents of candidates are known and the voters have the opportunity to make meaningful choices in casting votes.
But, which way are free, fair and meaningful elections? What conditions must be fulfilled for such elections? Do those conditions prevail in Bangladesh for the next Parliament elections?
The prerequisites for free, fair and meaningful elections are: (a) an appropriate legal framework, (b) an effective election authority, (c) neutrality of the government during elections, (d) cooperation of the political parties, and (e) activism of the civil society. The Parliament through its legislative action and the Judiciary though its interventions also play important roles for making, or not making, elections credible, peaceful and meaningful.
Appropriate Legal Framework
Free, fair and meaningful elections require an appropriate set of electoral laws covering the entire process of election. The purpose of such a legal framework is to create an environment in which the electorate can choose their representatives by the exercise of their free will without any hindrance, pressure and undue influences from any quarter. The environment must also be conducive to making meaningful choices by the voters. The legal framework includes both constitutional provisions and statutory 
requirements.
Article 65 of Bangladesh Constitution requires the establishment of a Parliament and Article 66 lays down the qualifications and disqualifications of candidates running for Parliamentary elections. The Fifteenth Amendment of the Constitution, enacted in June 2011, provides for Parliamentary elections to be held under the government of the day — i.e., a party-based government – and during the 90 days prior to the expiry of the Parliament. In addition, it restrains the authority of the Judiciary to intervene in Parliamentary elections after the election schedule is declared by the Election Commission.
Statutory laws must extend full protection to the electorate against any fear, fraud, misrepresentation or other undesirable practices which may be indulged by or on behalf of the candidates in elections. They must insulate elections from the undue influences of money, muscle and other inducements. Electoral laws must contain an equal and just demarcation of constituencies, the principle of one person-one vote, the secrecy of voting, a just procedure for casting votes, and for counting and the declaration of election results. Such laws must also provide unfettered freedom to every person, who is qualified to offer himself as a candidate for election, and allow him to campaign freely, subject to the conditions of law.
In particular, the statutory laws must have detailed provisions for: preparation, update and maintenance of the electoral roll; qualifications and disqualifications of candidates and elected representatives; disclosure of antecedents of candidates; nomination, scrutiny and withdrawal of candidates; registration of political parties and election symbols; poll procedures, counting and recounting; corrupt practices and other electoral offences; election expenses; and adjudication of election disputes etc.
Photo: AFP
In Bangladesh, the major laws relating to elections include: The Representation of People Order, 1972 (RPO), The Electoral Roll Act, 2009, The Delimitation of Constituencies Ordinance, 1976. There are also laws that govern the election of local government bodies. In addition, the legal framework includes various rules and codes of conduct.
Photo: Jashim salam/ drik news
These electoral laws of Bangladesh were updated and amended during the tenure of the last CTG. Many laws especially the ones relating to Parliamentary elections, were later ratified by the Ninth Parliament. They have some very useful provisions, namely the requirement of disclosures of the antecedents of candidates, the registration of political parties, an independent secretariat for the Election Commission and so on. However, they lack some provisions that are conducive to free, fair and meaningful elections.
Photo: Wahid adnan/ drik news
One such exception is the provision preventing candidates who are unsuccessful in getting the nomination of registered political parties from contesting as independent candidates. This restriction on so-called rebel candidates reduces the number of candidates in elections, narrowing the range of choice for voters, which is not healthy for democracy. More seriously, it imposes the absolute hegemony of the two major political parties — rather two families — over our political system. Such dynastic rule, mimicking monarchy, makes our political system stagnant as there is little room for talented outsiders to reach the top.
Another limitation of the RPO is that its provisions are unable to prevent the widespread use of money to buy nominations as well as elections, causing the biggest threat to the fairness of our electoral process. Such use of money in elections, more importantly, has turned the profession of politics in our country into a profitable “business” instead of a public service, undermining the very foundations of our democratic system. In fact, we now have in our country, the “best democracy money can buy”. In the interest of making future elections meaningful, the RPO needs to be amended and also vigorously enforced.
Photo: noor alam
A third weakness of the RPO is the disclosure requirements. The existing format used for disclosure of antecedents is unsatisfactory and its enforcement is lax at best. In order to make elections meaningful, we therefore need to revise the disclosure format to elicit more relevant and comparable information and verify their authenticity to prevent concealing or providing misleading information.
It may be noted in this connection that the Ninth Parliament has a number of members who concealed information in their affidavits regarding their antecedents, which should have disqualified them to run for election; they are also ineligible to continue as MPs. There are also MPs who have become disqualified to hold their office because of their engaging in business with the government. The RPO needs to be amended to make it easier to get rid of such lawmakers who have become lawbreakers.
In addition, the RPO must require filing the nomination online so that the disclosed information can be processed quickly to prepare comparative statements for distribution among voters on time.
Although the statutory provisions have some very positive aspects, the same cannot be said about the existing constitutional provisions, namely the Fifteenth Amendment. More on it later.
Photo: Shafiqul Islam Kajol
An Independent Election Authority
The holding of elections must be assigned to an independent authority that can function impartially and be free from pressures from the party in power or executives of the day. In Bangladesh, the Election Commission, a constitutional body, is entrusted with the responsibility of holding elections. The Bangladesh Constitution grants independence, including financial independence of the EC, although because of bureaucratic procedures, it is not always easy for the EC to exert its financial independence. The Bangladesh Supreme Court also, in Altaf Hossain vs. Abul Kashem [45 DLR (AD)(1993)] recognizes the EC’s almost absolute power, even the power to add to statutory rules, to ensure free and fair elections. In addition, during the tenure of the last CTG, the secretariat of the EC was delinked from the Prime Minister’s secretariat and made independent.
Even though the EC has the constitutional and statutory mandate to function independently, whether or not it can do so depends on the quality of people making up the Commission. Many citizens have serious concerns about the manner in which the EC was reconstituted about a year ago and the neutrality of some of the Commissioners.
The opposition 18-party alliance has already expressed its non-confidence in the present Commission. Thus, to ensure that the elections to the Tenth Parliament are held in a free and fair manner, a law needs to be enacted in the Parliament, as mandated by Article 118 of the Constitution, and a consensus reached with the opposition about the reconstitution of the present EC.
Free, fair and meaningful elections also require that the election disputes are resolved fairly and expeditiously. In Bangladesh, the judiciary is given the final authority to adjudicate election disputes. But past experiences show that such disputes are seldom resolved expeditiously, and many times the five-year life of the Parliament expires before decisions are made by the Court. Thus, the law must mandate the setting up of an adequate number of High Court benches to ensure the quick disposal of election related litigation.
Neutrality of the Government
Article 126 of our Constitution mandates that “it shall be the duty of all executive authorities to assist the Election Commission in the discharge of its functions.” However, party-based governments during elections are not always responsive to this requirement, as free and fair elections may not be in their best self-interest. We have seen that happen over and over again in our country.
In Bangladesh, political parties also manipulate elections. It is not thus surprising that historically ruling parties have always returned to power when elections were held under party-based government. On the other hand, it is not also surprising that parties in power always lost when elections were held under a CTG. Thus there seems to an undeniable link between a neutral government during elections, and a more level playing field for all competitors.
Since 1991 we have had a system of neutral government during national elections (except for the February 1996 elections) which helped the election results ultimately gain widespread acceptability. A national consensus, involving all segments of the society, also emerged in favour of continuing the system. However, using the pretext of a short order of the Appellate Division of the Bangladesh Supreme Court declaring the CTG as unconstitutional, the present government removed it from the Constitution, despite the Court’s observation that the Parliament, in consideration of greater national interest, could keep the system in place for another two terms.
The opposition political parties have already declared its intention to boycott the next Parliamentary elections unless the CTG is reinstated, putting our democratic system at risk of collapse once more.
The present government’s insistence on holding the next Parliamentary elections under a party-based interim government and before the expiry of the terms of the Parliament, is likely to lead to tainted elections, especially in view of the increasing “partisanism” in bureaucracy and law enforcement agencies.
In fact, the partisan functionaries will have strong incentives to ensure that their patrons return to power as they would otherwise loose their patronage and even face the “music” for their current wrongdoings. Thus, it is highly likely that the next general elections would be manipulated without even blinking of the eyes of the top political leadership of the present regime. One way the successive CTGs ensured fair elections in the past was that during elections they replaced the partisan functionaries and created an environment conducive for all to function in a neutral manner.
Cooperation of the Political Parties
Historically, even in America, political parties were considered to be evil as they fostered factionalism. However, over the years they turned out to be engines of democracy. In fact, experiences show that democracy cannot sustain and take deep roots without political parties that are democratic, transparent and accountable.
Even free, fair and meaningful elections are not possible without the support and cooperation of political parties. If political parties are bent upon winning elections at any cost, engage in monnoyon banijya (i.e., nomination trade), buy votes with money or other favours, resort to violence or otherwise engage in corrupt practices, it is very difficult, if not impossible, for an independent Election Commission to hold free, fair and credible elections. In a country like ours where graft and corruption are rampant and institutions of accountability are weak or non-functional, winning an election means winning a sort of “lease” to loot and plunder during the next five years. This obviously creates strong incentives to win elections by hook or by crook. In such a situation, political parties act more like syndicates promoting the interests not of the masses, but of the few.
The opportunities to reap such undue benefits creates strong incentives for political parties, especially the ruling party to rig elections and do everything possible to keep the competitors away from power. Such unhealthy competition fosters a culture of intolerance, confrontation and even repression of political opponents, preventing the creation of a tradition of multi-party democracy, characterised by tolerance and mutual respect and cooperation in our country. In this process, our major political parties have largely become conduits for politicising crime, sometimes criminalising politics and even sources of violence. They have also become dens of dynastic politics and cronyism. They use money and muscle to get their candidates elected. They do not even abide by electoral laws. Thus, our present criminalised political culture, with despotic bosses and non-transparent political parties, is not conducive to free, fair and meaningful elections. Political parties are not also likely to cooperate with each other for such elections.
Civil Society Activism
Civil society, as distinct from the political society and private businesses, plays a significant role in making democracy function effectively. As the old adage goes, even freedom is not free, it requires the eternal vigilance of citizens. In free societies, civil society performs an all important watchdog role. In fact, the more vigorous civil society is in expressing dissent, the freer and more democratic the larger society is.
In Bangladesh, civil society has traditionally played the “election monitoring” role. During the autocratic Ershad regime, when elections were largely voterless due to intimidation and violence sanctioned by authorities or other forms of manipulation exercised in and around the polling centers, such election-day observation of voting was critically important. However, with the advent of the neutral Caretaker Government, the so-called election monitoring as a means of ensuring free and fair elections has become much less important. In fact, during the last two decades, monitoring the democratic system from appropriateness of the legal framework, to the behaviour of the functionaries, to political parties have become more important for ensuring free, fair and meaningful elections. For example, SHUJAN — Citizens for Good Governance — has been playing such a role over the past decade.
However, during the elected governments of the last two decades, there have been deliberate efforts by successive governments to make the civil society weaker. One such effort has been to dole out patronages to successfully create partisan divisions within civil society groups, such as teachers, lawyers, doctors, journalists, cultural personalities and other professional groups. In recent years, there has also been various forms of overt and covert intimidation and other attempts to shrink the space of civil society. Thus, it is unlikely that the civil society would be able to play its due role to make the coming election free, fair and meaningful.
To conclude, it is clear that a true and effective democratic system, which is our constitutional mandate, requires free, fair and meaningful elections. Prerequisites for such elections are: an appropriate legal framework, an effective Election Commission, a neutral government during elections, cooperation of the political parties, and activism of the civil society. While the existing legal framework has some positive provisions, it is far from satisfactory for ensuring free, fair and meaningful elections. Despite having an independent secretariat, the neutrality and effectiveness of the present EC is highly in question. The aggressive efforts of successive governments to promote partisan behavior of the bureaucracy and law enforcement agencies has also destroyed the neutrality of our functionaries. Our political parties, devoid of internal democracy, transparency and accountability, have become dens of criminal elements and act like syndicates. Civil society has also been weakening and its space has been shrinking over the past few years. Thus, one can hardly conclude from the foregoing that an enabling environment prevails in Bangladesh for the next general elections to be credible and meaningful.
The writer is Secretary, SHUJAN – Citizens for Good Governance.
Reference by: The Daily Star, 17 March 2013