BACKGROUND

One of the worst legacies of military rule in Bangladesh of long sixteen years was the destruction of the integrity of the electoral process. Elections under Martial law were essentially for legitimization purpose and election rigging with the involvement of civil administration became a routine matter. Field Marshall Ayub Khan in Pakistan ensured desired results by banishing direct election; it was easy to win over only 80,000 electors in a country of 115 million(*1). Direct election in 1970 under Pakistan was free and fair and parliamentary election in Bangladesh in 1973 was also by and large free and fair. Of course, traditionally there always were some cases of rigging in specific constituencies. Many powerful people would prevent voters likely to vote against him from casting their votes. Some such people would also stuff ballot boxes by intimidating election officers. It was usually a case of fraud practiced by candidates or parties while civil administration would normally be above such machinations.

General Ziaur Rahman began the wholesale rigging process with the referendum in 1977. Stuffing of ballot boxes in a referendum of little public interest held by him on 30 May 1977 recorded a voter turn-out of 88.5 percent and he secured affirmative votes of 98.88 percent. He held two more elections – Presidential election on 12 June 1978 and parliamentary election on 18 February 1979. With the help of very capable bureaucrats and the use of civil and military intelligence agencies he institutionalized false voting through various devices. In the parliamentary election he earmarked seats for specific candidates and the civil administration ensured return of these candidates. Justice Abdus Sattar succeeding General Zia first amended the constitution to make himself eligible for election and then held a Presidential election on 15 December 1981. In the usual style his victory was a foregone conclusion, the only question being the margin of difference that the administration would decide. General HM Ershad followed Zia’s footsteps and held a referendum on 21 March 1985. In order not to go for the absurd results produced by his predecessor he declared a voter turn-out of 72.2 percent and affirmative votes of 84.1 percent. General Ershad excelled in holding fraudulent elections successively. He held three elections, first the parliamentary election on 7 May 1986, second the Presidential election on 15 October 1986 and third another parliamentary election on 3 March 1988. Two of these elections, the presidential and the second parliamentary one, were boycotted by all political parties including, Awami League and BNP, except his own JP. However he foisted some parties to give some credibility to the elections. Military and quasi-military rulers thus in sixteen years held eight elections, including two referenda. The civil administration of Bangladesh thus became highly experienced in rigging elections.

On 6 December peoples’ uprising got rid of military rule and a caretaker consensus government was installed for holding a free and fair election. Parliamentary election on 27 February 1981 gave the first lesson to the civil administration to be neutral in conducting an election. But before this lesson could be converted into a culture it was destroyed in the many by-elections held by the BNP government climaxing with the rigged by-election of Magura on 20 March 1994. A demand for election under a non-party neutral caretaker government took roots and all parties except the BNP stood solidly behind the demand. Khaleda Zia refused to accept the demand and even berated the idea of a neutral government as the plaything of mad people and children. She went for the parliamentary election on 15 February 1996 that went down in records as another voterless election. But this election was rejected by all and the new BNP government of Khaleda installed on 19 March 1996 had to resign in 12 days after enacting the thirteenth amendment for a non-party caretaker government between regular elections. The amendment was bad in many ways, foremost among which were that it struck at the foundations of parliamentary system of government and it brought judiciary into politics. But it was accepted generally because it got rid of an illegitimate regime and put a stop to a brewing chaos.

A caretaker government came to office on 30 March 1996 and it conducted a free and fair election on 12 June 1996 despite some crisis caused by vesting of powers in the President that was not warranted by the parliamentary system. Awami League as the victorious majority party formed the government in coalition with other parties. BNP maintained that the election was not really free and fair and opposed the government with hartals and boycott of parliament. As the tenure of AL government ended a caretaker government came to office and parliamentary election was held on 1 October 2001. This time AL was pitted against an Alliance of four parties viz., BNP, JI, IOJ and a faction of JP. It was alleged widely that the caretaker government did not behave in a neutral manner and turned the tide against the Awami League. In an adverse environment various types of electoral fraud were perpetrated. Awami League questioned the electoral verdict but accepted it under protest. Awami League also carried out an analysis of the election and pointed out the mechanism by which it was rigged.

Soon after the parliamentary election, election to the City Corporations in Dhaka, Khulna and Rajshahi as also a few by-elections took place. The way these elections were conducted further proved the addiction of the Alliance to terrorism and electoral fraud and its art of election engineering for victory. They also demonstrated the helplessness of the Election Commission as well as its utter incompetence. The primacy of black money and muscle power appears to be an article of faith with the BNP. The Alliance government also has completely politicized the upper echelons of the bureaucracy and virtually criminalized the police force, partly as an element of its election engineering mechanism. On top of it in a blatant move the Alliance government amended the constitution to ensure the appointment of a chosen person as the Chief Advisor for the next caretaker government. Awami League was preparing its proposals for elaborate electoral reforms in the light of its findings in the study of the Rigged Election. The fourteenth amendment and the experience of election rigging in the by-elections convinced all opposition forces of the need to reform the entire electoral process starting with the caretaker government formation to conducting elections in the polling centres. Putting their heads together the eleven party Alliance (with some dissenters) Awami League and some others have drawn up their demand for reforms on 15 July 2005. This was announced in a crowded press conference on 15 July by Sk Hasina MP, the Leader of the Opposition and the President of Awami League, on behalf of the fourteen parties.

The joint proposals of the Fourteen party forum for ensuring free and fair election are presented below.

FOURTEEN PARTY PROGRAMME OF ELECTORAL REFORMS

REFORMS OF THE CARETAKER GOVERNMENT FOR A FREE AND FAIR ELECTION

Free and fair election is the crucial pre-condition for democratic system. In the Universal Declaration of Human Rights adopted by the UN in 1948 the necessity for free and fair election has been emphasized. The joint declaration of the framework for restoration of democracy of three alliances in 1990 demanded a free and fair election under an interim government and stipulated total neutrality of this caretaker government. Carrying this concept to its logical conclusion a constitutional arrangement for a non-party neutral caretaker government between two parliaments to ensure free and fair election turned into a national demand. At the same time it was also demanded that the electoral system should be reformed to free it from the influences of black money, terrorism and communalism. Sidetracking this national demand the BNP government of the time held on 15 February 1996 a voterless one party election. The parliament so elected could not pass the test of legitimacy both nationally and internationally. Mass upsurge forced the parliament of 12 days to dissolve itself after passing a constitutional amendment on non-party neutral caretaker government.

The caretaker government that assumed power in the wake of the uprising was successful in holding a free and fair election. But the enhancement of powers of the president for the interim period made by that amendment demonstrated the possibility of crisis in governance. In our parliamentary practice the President makes only two discretionary choices and acts on the advice of the Prime Minister in every other matter. But the thirteenth amendment gave such powers to the President that strikes at the foundation of the parliamentary system. This amendment created a kind of dyarchy that can engender undesirable and unintended conflict. The vesting of the control of the defense ministry in the hands of the President is one such source of possible conflict. The amendment also vests all state powers in the President for the interim period by making the non-party government accountable to him.

Recognizing the neutrality of the judiciary the Chief Justice was made the head of the interim government in order to make the transition from autocracy to democracy in 1990. The amendment for caretaker government provided for the latest retired Chief Justice to be the Chief Advisor. In case he would not be available the previous retired chief justices followed by retired justices of the Appellate Division of the Supreme Court were made eligible for this position. This unfortunately has politicized the judiciary. The sudden extension of retirement age of only the judges of the Supreme Court from 65 to 67 bears testimony to intrusion of partisan politics in judicial appointment. The willful delay in the separation of judiciary from the executive and partisan considerations in the appointment of judges of the Supreme Court have raised questions about the integrity of the judiciary. Above all, appointment of a public servant holding a specific post as the Chief Advisor is also not very logical. With a view to make the process more transparent, more efficient and more effective the field of choice for the Chief Advisor should be widened beyond the small circle of judiciary only.

The constitution enjoins on the caretaker government to assist the Election Commission in holding free and fair election and discharge the routine functions of the government as an interim government. The caretaker government is prohibited from taking any policy initiatives. But the caretaker government of 2001 not only took policy decisions but went beyond their legal authority in its performance. It is necessary that its jurisdiction should be strictly controlled.

The Chief Advisor and other Advisors of the non-party caretaker government should not be members of any political party or of any organization with political links. On top of it the Chief Advisor must command the confidence of all political parties.

In this context in order to ensure free and fair election and adherence to the constitutional process, the provision regarding caretaker government should be modified to reflect public aspirations in this regard.

The mandate of the people is as follows;

1. In consultation with all political parties the President shall appoint a unanimously trusted and accepted person as the Chief Advisor and other members of the Advisory Council shall also be appointed in the same process.
2. In consideration of the parliamentary system of government the President shall act always on the advice of the Chief Advisor.
3. The responsibility for the Ministry of Defense shall vest in the Caretaker government and it shall be directed by the Advisory Council.
4. The Caretaker government shall confine itself to handling only routine matters of the government and assisting the Election Commission in the conduct of election.

REFORMS IN THE ELECTION COMMISSION FOR A FREE AND FAIR ELECTION

Only an independent and neutral Election Commission can ensure a free and fair election. This was why the joint declaration of the three alliances of 1990 sought to ensure the independence and neutrality of the Election Commission. While election laws and regulations were amended the Election Commission was not suitably strengthened. The subject of appointment of the Chief Election Commissioner and other Commissioners and creation of an independent and effective body free of control by the executive were not seriously tackled. As a result the Commission tends to be helpless in conducting election free of interference by the executive. In the circumstances the following measures are recommended for making the Election Commission independent and effective:

1. The appointment of the CEC and other Commissioners shall be made in consultation with all political parties. In the same process the number of Commissioners shall also be decided.
2. The Commission in the usual manner shall act on the basis of consensus; but in case of a difference of views shall be guided by the wishes of the majority.
3. The Commission being a permanent constitutional institution shall be accorded the due authority and honour so that it may conduct and supervise the election independently and unfettered by executive control.
4. There shall be an independent secretariat of the Election Commission. It shall be free of control of the executive branch. It shall extend its offices to Upazila level and employ and control all the staff of the organization. At the time of an election the government shall provide sufficient manpower as required by the Commission.
5. The Election Commission shall be financially autonomous and for that its budget allocation shall be charged to the consolidated fund of the Republic. There shall be no jurisdiction of the Finance Ministry in the release of such allocation.
6. The Commission shall freely appoint all election officers e.g., Returning, Presiding or Polling officers and deploy the law enforcing agencies for election duty and the government shall be obliged to make arrangements accordingly.
7. All personnel employed on election duties shall be under the control of the Election Commission for a fixed period before and after the election. For any dereliction of duty or violation of laws and regulations they shall be subject to any punishment or disciplinary action by the Commission. The government shall be obliged to implement the decision of the Commission.
8. The Election Commission shall be fully independent in announcing the election schedule and framing rules and regulations for the conduct of the election.
9. For any breach of election laws or rules the Election Commission may stop or cancel the election and order detention and punishment of the violators. For this purpose for the election period the Commission shall be vested with judicial authority.
10. A. There shall be complete transparency in the preparation of the voters’ list. For enlistment of voters continuous media announcements should be made, cross checking of the list should be undertaken and permanent arrangements be made for updating the list. The voter list shall be computerized and voters shall be given identification cards. Arrangements shall be made for electronic voting system.
    B. As per Peace settlement in the Hill Tracts a new voters’ list for permanent residents of the Hill Tracts shall be prepared and their right of franchise be ensured.
    C. Arrangements shall be made to enlist the expatriate citizens as voters and to ensure exercise of vote by them.
    
11. The Election Commission shall constitute an all party observation team for each constituency at the election time. At the national level the enlistment of the election observers shall be made after due assessment by the Commission six months ahead of the election and the list of observers shall be provided to the contesting parties and candidates at the time of the announcement of the election schedule. Such observers shall not be entitled to enter the polling centres or booths.
12. Information about international observers should also be announced a month before the election and their charter of activities should be clearly determined.
13. If electronic voting cannot be arranged the ballot box in each booth shall be transparent and numbered.
14. In the polling centre vote counting shall take place in the presence of agents of all candidates and observers. A signed copy of the results shall be given to all of them by the Presiding officer. The Returning officer shall send the consolidated statement of results to the Election Commission and only the Commission shall announce the results.
15. For any disputed election result any case filed with the Election Tribunal shall be settled within two months. Any appeal to the Supreme Court in this respect shall also be settled within three months. The Election Commission shall be a party for settling the case according to this schedule.




REFORMS IN THE ELECTION LAWS, RULES AND SYSTEM FOR FREE AND FAIR ELECTION

I : TO HALT THE MONEY GAME IN ELECTION:

a. All expenditure made by a candidate or others in his support for the election shall be treated as his election expenditure and it shall not exceed the prescribed expenditure limit. For each electoral constituency it shall be monitored by a designated officer and he shall furnish regular reports to the Election Commission. The expenditure report submitted by a candidate shall be checked with this report.

b. The statement of income and expenditure of a candidate shall be an open document for the public and it shall be supplied to the media. Any voter may raise questions about any content of the statement.

c. The return on election income and expenditure shall be submitted by a candidate within a month of election and failure in this respect shall cancel the election result.

d. Anyone furnishing false statement on election income and expenditure to the Election Commission shall be liable for severe legal action.

e. Unless rescheduling of loan default is done a defaulter shall be ineligible for contesting election. The surety of a defaulter shall also be equally ineligible.

II : PUBLICATION OF THE WEALTH STATEMENT AND OTHER PARTICULARS OF CANDIDATES:

a. A candidate shall be obliged to submit along with her/his nomination paper a statement on his/her wealth along with the wealth of his/her family members as well as information on his/her involvement in any economic and financial activities of the state.

b. As directed by the High Court candidates shall submit along with their nomination papers information on their educational qualifications, other credentials and criminal records if any.

c. The Election Commission shall take appropriate measures to inform people about the qualifications or disqualifications of the candidates.

III : QUALIFICATIONS FOR CANDIDATURE;

a. If a candidate or any member of his/her family is a loan defaulter he/she shall be treated as an owner of black money.

b. No government employee shall be a candidate in election in violation of government regulations.

c. Anyone with anti-liberation record as a war criminal shall not be eligible to be a candidate. This prohibition shall apply to independent candidates as well.

d. Parties shall take steps to ensure a compulsory transparent process of nomination from the grassroots and adherence to democratic process within the party as well as to prevent monetary influence on the nomination process.

IV : TO RID THE ELECTION OF THE INFLUENCES OF TERRORISM, MUSCLE POWER AND DEPRAVITY AND VILLAINY:

a. Application of brute force and carrying and display of arms at election shall be strictly prohibited. Steps shall be taken to severely punish use of force.

b. A person convicted of a crime shall be ineligible for participation in election for a fixed period.

c. No political party shall nominate a terrorist or a lord of black money as a candidate for election.

V : EXPLOITATION OF RELIGION AND COMMUNALISM IN ELECTION:

a. Misuse of religion in any way and communal propaganda and appeal to secure votes in the election shall be prohibited as a punishable offence.

VI : EQUAL OPPORTUNITY FOR ALL IN ELECTION:

a. Regulatory provisions in respect of postering, leafleting and electric advertisement; and use of microphone, election banners, gates and wall writing shall be followed without exception. Local election officer shall ensure adherence to regulations and any breach of laws and rules shall be reported forthwith to the Election Commission for immediate action.

b. The Commission shall arrange for projection meetings in every constituency.

c. From the day of announcement of the election schedule all expenses on assemblies, grand show-downs, rallies and public meetings shall be strictly controlled.

d. In a constituency, except for the election office as per election manual, no other structure for electoral club, camp or publicity centre may be set up.

e. The time for use in the electronic media (Radio & TV) shall be equitably distributed and expenses on this account shall be strictly regulated.

f. The Commission shall supervise and monitor all these matters and cancel the candidature of violators of the rules.

VII : TRANSPARENCY IN THE CONDUCT OF ELECTION:

a. Lists of Presiding , Assistant Presiding and Polling officers shall be provided to the candidates 15 days before the election so that if any objection is raised it may be disposed of well in advance.

b. The list of polling centres shall similarly be published 15 days prior to the election.

c. For public awareness on both these matters information shall be locally circulated.

VIII : THE ROLE OF THE LAW ENFORCING AGENCIES IN ELECTION:

a. To ensure security of the election, to resist terrorism and communal activism and to ensure proper application of electoral laws and rules, the authority over the law enforcing agencies shall vest in the Election Commission and it shall have full powers of control over them.

b. Amended articles 87A and 89A of P O 155 of 1972 made by the last Caretaker government changing the definition of law enforcing agencies and empowering them with magisterial powers shall be recanted. The charge of the armed forces and other law enforcing agencies during election as provided in 1972 Representation of the Peoples Order and 1991 election law shall be restored.

IX : TO ENSURE INTERNAL DEMOCRACY AND DEMOCRATIC CULTURE IN THE POLITICAL PARTIES:

a. Political parties participating in election shall be obliged to conduct their organization according to democratic principles and elect their executives on a regular basis. They shall compulsorily submit their financial statement to the Election Commission.

b. The Commission shall provide training regarding election to political workers.

X : CONDUCT OF POLITICAL PARTIES AND CANDIDATES:

The code of conduct as adopted shall be strictly followed and political parties shall cooperate in its enforcement. In order to assist the Election Commission at central and district levels all party advisory councils shall be formed.

XI : FEMALE REPRESENTATION:

Reserved seats for women shall be increased and direct election of women representatives shall be arranged.

 

*1 Ayub won the referendum in 1961 with the votes of 80,000 basic democrats when the population was 92 million. In 1962 representatives to both the provincial and national assemblies were elected by the same 80,000 voters. In the Presidential elections in 1965, 80,00 basic democrats represented 115 million people.



Newsletter _______________________
Vol. 4. No. 5. July 30, 2005
Bangladesh Awami League Publication