Sunday, December 18, 2016 http://dailyasianage.com/news/41615/representation-of-the-people-order-needs-amendment-for-free-fair-election
Representation of the People Order needs amendment for free, fair election M S Siddiqui Elections may be defined as political process through which the people choose their representatives. Election means? (a) in which all parties participate (b) whose outcome is broadly accepted as legitimate and accurate, (c) where violence and intimidation do not keep people from voting or expressing their opinion, (d) where minorities are not singled out for persecution, (e) where the playing field is more or less even and (f) where electoral process meets the international standards of fair play and is consistent with the constitution and other laws of the land. Election laws regulate who votes, when and how they vote, for whom they can vote, how campaigns are conducted, and how votes are recorded, counted, and declared result of election. The Constitution of Bangladesh gives the provision for setting up an Election Commission (EC) for the superintendence, direction and control for the election to the office of the President and to the Parliament and the conduct of such elections in accordance with the Constitution. The EC shall be independent in the exercise of its functions and be subject only to the Constitution. However, neither the Constitution nor any rule prescribes qualifications and number of commissioners for appointment to the post of Election Commissioners. The EC should determine the qualification and total number of Commissioners by enacting suitable law. Major activities for conducting elections include preparation of voter list, appointment of Returning Officers (RO) and Assistant Returning Officers (AROs), acceptance of nomination papers, appeal against rejection of nomination by the ROs, list of candidates, statement of probable sources of fund, declaration of rules after scrutiny, symbols to be used in elections, count votes, procedure of consolidation of results and return of election and public inspection of documents. In conducting elections, the EC constitutes Electoral Enquiry Committees with judicial officers and formulates a Code of Conduct that provides a set of rules. The EC should be totally independent as a constitutional body. The EC in reality has to depend on the government functionaries for conducting its responsibilities like discharging its functions at field level during elections and maintaining law and order. The government starts its control with the appointment of Chief Election Commissioner and other Commissioners followed by recruiting staff for the EC Secretariat and control of funds as government manage different financial issues including budget allocation and disbursement of funds.
The Constitution of Bangladesh provides a provision for the appointment and tenure of the CEC and AECs. There are three different organizational structures in the Commission - the EC, EC Secretariat and field officers. Although the EC is a constitutional institution, the Secretariat is under the office of the Prime Minister. A Secretary to the Government heads the Election Commission Secretariat. EC's neutrality is hampered due to arbitrary appointment of CEC and Election Commissioners with partisan image. All these are reflected in the results of elections in favor of the ruling party. According to the Election Commission Rules (1979), the responsibility of recruiting first class officers at the field offices of the EC lies upon the Ministry of Establishment and the selection procedure is conducted by the Public Service Commission (PSC). PSC is a constitutional commission but the secretariat is under control of the government. The control of recruitment of staff by others is against the independence of EC. The Commission does not have required field officers and appoints a Returning Officer for each constituency mostly from civil service. Traditionally Deputy Commissioner and Upazila Nirbahi Officer are appointed as ROs and espectively. According to the Constitution, all executive authorities are bound to assist the EC in discharge of its functions. So the Commission engages RO, ARO, PO, APO, Polling Officer, security personnel and others from public and private offices to conduct different types of elections. During election, their duties go under the authority of the Commission. But there is no proven record of neutrality of government officials deputed from bureaucracy. The expenditure of the EC is managed from the consolidated fund approved in the national budget. However, it is dependent on the Ministry of Finance for its budgetary allocations. Considering the experience of conducting election and election-related expenses such as voter list updating, training of the personnel, costs of the administrative machinery, the Commission estimates the yearly budget. However, the Ministry of Finance does not necessarily provide the amount as required. There is a huge gap between the demand placed by the EC and fund provided by the ministry. Sometimes the ministry delays fund disbursement hampering the activities of the Commission. It has been observed that despite a good number of laws and rules, the EC still lacks legal provisions in respect of an enabling law for its establishment and structure like other constitutional bodies, an independent Secretariat on its own, hiring and firing authority, financial independence, monitoring authority over political parties and proper mechanism of processing election disputes. Inconsistencies among some of the electoral laws and rules are also observed. Recently, the Parliament has amended the Representation of People's act that barred candidates who has not been a member of a registered political party for three years if this provision shall not apply to a nominated candidate of any political party during the period of three years from the date of its first registration with the Commission. This sub- clause was not originally applicable for independent candidates. However, the major
reform was brought in the Chapter III Article 12(1), pertaining to the disqualification of a candidate. It was a restriction of new entrants to politics from other professions without any political background and financial transaction by parties and their high-ups during nomination of candidates. The restriction of membership was also another safety mechanism to prevent change of political parties immediately before election. The culture of changing parties is rampant just before elections. It indicates money and muscle culture in the political and electoral system. The amendment of such an important clause was deleted from the RPO act without recommendation from EC and it was not discussed with any political party and other stakeholders. Political parties have no democratic system of nomination. They form nomination board for particular election but the real situation is different as usually the high-ups use to select candidates violating all democratic norms. They also change the nomination any time even withdraw nomination without explaining any reason. Clause 3 (a) allowed any registered political party to nominate more than one candidate primarily and to finalize their candidate with a letter to Returning Officers, But this has been restricted and if they nominate one candidate, their nomination shall be final and notice of withdrawal under article 16 and clause (1), in no circumstances, shall be open to cancellation. The strict decision not to entertain cancellation of nomination is perfect decision. The security deposit Tk 10,000 has been increased to Tk 20,000 and the mode of deposit has been changed to either cash or draft or pay orders nstead of only cash deposit. The article 44 (B) has been amended to increase the expenditure of election from Tk15,000 to 25,000 and inserted another sub-clause 33 stating that the expenditure shall not include expense of travelling for election Champaign. We know that candidates invest crores of Taka for campaign and other purposes. The law should focus on proper use of money rather than increase the limit of expenditure. The amendment also increases the amount of donation to the registered political parties by individuals and organizations. The amendment inserts a sub-clause in Clause 44E empowering the EC to request the relevant department for recruiting any employee and that request must be implemented as soon as possible. The EC must also have authority to recommend punishment for violation of rule of conduct and violation of order of EC. The commission should ensure their own work force to organize election without deputation of government staffs as soon as possible. The EC should have its own Secretariat. The EC should increase its own capacity to empower staff and develop infrastructural and logistical strength so that its dependence on bureaucracy can be reduced. The EC should develop its own section of legal experts to handle thousands of pending/current legal cases. A neutral mechanism should be developed for appointing the CEC and ECS. This responsibility may be laid upon to the Law and Parliamentary Standing Committee. Necessary amendments
may be brought in the Constitution prior to consensus from all political parties. The nation yet to have a Judges Nomination Commission for Judges of Supreme Court to make the best possible independent legal system. For transparency and accountability of the EC, it should submit the annual activity report and election reports to the President through the parliament. These reports should be discussed in the parliament and made public. EC should update the voter list by every year as a continuous process. The existing computer-based voter database must be updated each year and shared in the website. The recent amendment of Representation of People's act could address these burning issues to ensure fair election under a credible and neutral Election commission. The writer is a Legal Economist