Why it is difficult for EC law to make a difference
The hasty enactment of the Election Commission formation law once again proves that making a legislation is just a cakewalk for Bangladesh's parliament, where the will of the government of the day always dominates and controls the show completely, indeed.
The task that had remained pending for 50 years since the constitution of independent Bangladesh took effect was accomplished in less than two weeks without much discussion, thanks to a sudden policy shift in the ruling camp.
Even two weeks ago, there was no clue that the party in power would opt for a law to meet the constitutional obligation. The law minister and some of his cabinet colleagues had been making public statements that it was not possible to make the law within a short time.
Keep updated, follow The Business Standard's Google news channel
They referred to the old formula to be used this time too, meaning that the new EC would be formed by the president in February through a search committee again.
Initially, the same old strategy was in action. On the advice of the prime minister, the president initiated talks on 20 December with the political parties, seeking their opinion on the formation of the new EC that would organise and conduct the next parliamentary election at the end of 2023.
But this time, the talks faced a boycott by some opposition parties, including the BNP. The parties that termed the talks "worthless" served the reminder that similar talks were held in 2012 and 2017 to form the two ECs that conducted the 2014 and 2018 parliamentary elections respectively, but the polls were locally and internationally questioned on grounds of fairness. As such, the arguments made by the opposition parties gained ground.
In the wake of the situation unfolding after the talks opened, the ruling party policymakers played the game well.
All of a sudden, the cabinet on Monday, 17 January, approved the proposal for the formulation the law on the formation of the EC. The proposal in the form of a bill was placed in parliament the following Sunday, 23 January, and subsequently passed on Thursday, rejecting opposition MPs' major proposals for changes in the bill to make the EC appointment process transparent.
The parliamentary standing committee on the law ministry earlier hurriedly completed scrutiny of the bill, proposing two cosmetic changes which did not improve the quality of the legislation.
The committee, dominated and controlled by ruling party MPs, rejected an opposition MP's proposal for seeking the opinions of stakeholders on the bill and including a provision in it for the disclosure of the names of the 10-member panel to be proposed by the search committee to the president, who on the advice of the prime minister would pick one for the post of CEC and four others as election commissioners.
Take note that the prime minister, who is also chief of the party in power, will have the final say as to who will be appointed as CEC and other ECs as the president will just act on the PM's advice. As the head of state, the president has no other option.
Yet, theoretically the next EC will be the first one to be formed under the new law enacted by parliament technically "upholding" the constitutional provision.
For this, both parliament and the cabinet should have been lauded, unanimously.
But the reality on the ground is different. The law offers nothing new. It only devised the procedure for the formation and functions of the search committee that were in practice on previous occasions. It also provided legal coverage to the formation and functions of the previous two search committees formed in 2012 and 2017. But it assigns no role to parliament in the formation of the new EC.
There was a better option already known. A proposal drafted by the then EC in 2007 had proposed that the names picked by the search committee be sent to the Speaker-led high-profile business advisory committee of parliament to finalise the process.
So, the upcoming search committee to be formed this time under the law will do the same work earlier done by its predecessors. Therefore, the EC-to-be may not be free of controversy over its formation.
One thing is clear, which is that the new EC will be faced with a Herculean task if it wants to hold the next general election in a free and fair manner. First, it will have to regain people's confidence in it and the entire electoral system, which confidence has largely been destroyed in the last one decade as it was done in the past, particularly during the rule of the nation's military dictators.
How big is the job for new EC?
There are numerous anecdotal stories that speak of the extent to which the EC and the electoral system have been abused and damaged. Both military dictators and 'elected' governments are equally responsible for today's fragile state of the election system.
Take first the story of military rulers who abused elections in their desperate bid to seek legitimacy for their extra-constitutional takeover of state power.
In independent Bangladesh, General Ziaur Rahman, who gradually seized power after the bloody changeover on August 15, 1975, called for a referendum in 1977 to seek legitimacy as head of the government in the name of seeking people's endorsement for his 19-point programme.
Believe it or not, the referendum yielded a voter turnout of nearly 90%, with 99% of voters saying "yes" to Gen Zia's 19-point programme.
Officially, the then EC conducted the referendum. But it was supervised and manipulated by intelligence agencies and civil servants in favour of then president Gen Zia.
The general did not stop here. To consolidate his legitimacy and power base, he floated a political party, BNP, and went for a parliamentary election in 1979 in which his newly floated party won a landslide thanks to the manipulation of the election in its favour.
The path Gen Zia showed was religiously followed by another military dictator, Gen Ershad. He held a farcical referendum in 1985, obtaining so-called legitimacy for his seizure of power.
In similar fashion he floated a party, Jatiya Party, to consolidate his power base. His military regime made the then EC hold a parliamentary election in 1986 in which the results were predetermined. During his regime, the EC also held a one-sided parliamentary election in 1988, which was boycotted by all opposition parties.
What Gen Zia and Gen Ershad did in the name of referendum was a Bangladeshi version of elections first introduced by Gen Ayub Khan, who commandeered state power in undivided Pakistan in 1958, introduced Basic Democracy and held a referendum in 1960 seeking to legitimise his illegal rule.
Both Gen Zia and Gen Ershad, following another of dictator Ayub Khan's recipes, destroyed local government elections too. Their henchmen and later party men were allowed to rig elections to grab local government bodies in order to establish supremacy over rural Bangladesh.
The fall of military dictator Gen Ershad opened the window to the restoration of democracy, with the country holding a free and fair election in 1991 for the first time in a decade and a half, under a caretaker government. But that good sign did not last long. The then ruling BNP in desperation to defeat the Awami League rigged a Magura parliamentary by-election, the first brutal attack on elections within a few years of the new journey having been undertaken. The EC failed to thwart the attack thanks to the partisan attitudes of the local civil administration and the law enforcement agencies. History could have been different had the EC taken strong measures against the anomalies in the by-polls.
The Magura saga ended up in a one-sided parliamentary election in February 1996, boycotted by the opposition parties. The ghost of a one-sided election returned again vigorously in 2014 as the EC formed through a search committee conducted the one-sided election, with MPs in more than half of the 300 parliamentary seats being elected uncontested.
After the departure of the then EC, mired as it was in controversy around the 2014 election, another EC was formed through the search committee. It conducted the 2018 election, which was participatory in theory but not fair in manner.
After the 2014 parliamentary election, the EC could not conduct any major election in a free and fair manner. An exception was the recently held Narayanganj city polls.
The consequences are enormous. The sweeping electoral reforms brought about before the 2008 parliamentary polls have become redundant.
The whopping success of the preparation of a voter list with photographs that buried all controversies over the electoral roll now carries little meaning as the EC miserably failed to ensure a congenial atmosphere for credible elections.
The record of the past says the EC has not been developed as an institution and the election system is still fragile even 50 years after the country gained its independence. In contrast, the tendency to manipulate the elections- be it national or local- has grown increasingly bigger, appearing as a major threat to free and fair elections. An absence of democracy within the parties has been a problem all along.
The new EC will have to face two other major challenges as its predecessors faced at the 2014 and 2018 elections. As in the past, a partisan government will remain in office and parliament will not be dissolved before the next election. No other parliamentary democracy in the world has such a provision, one that allows MPs to remain in office when they seek re-election.
It is political will that matters most
The above examples do not tell the full story.
There are records of free and fair elections being held. The first election held in independent Bangladesh was largely free and fair. And that was the lone success of the EC in holding a credible general election under a partisan government. It was possible thanks to the political will of Bangabandhu's government then in office.
After a long gap, the EC was able to conduct four other acceptable and therefore credible elections --- in 1991, 1996 [June], 2001 and 2008. How was it possible? The magic was political goodwill on the part of the non-partisan caretaker governments of those days.
The records show the EC performed well when a non-partisan government remained in office, with the political will to extend all-out support to the EC for holding elections "peacefully, fairly and impartially."
For today's fragile state of the election system, the EC alone is not responsible. The civil administration and the law enforcement agencies have been abused for partisan gains.
Why role of EC is so important
In a democracy all is for the "little man" as Winston Churchill summed it up decades ago: "At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper – no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of that point."
In Bangladesh and India, the Supreme Courts in their judgements have quoted the "little man" remark to explain the significance of elections in a democracy and the power of the voters.
"'Democracy' and 'free and fair election' are inseparable twins. There is almost an inseverable umbilical cord joining them. The little man's ballot and not the bullet of those who want to capture power (starting with booth capturing) is the heartbeat of democracy," noted the Indian Supreme Court in an advisory opinion in 2002.
In the verdict in the 13th Constitutional amendment case, which declared the non-partisan caretaker government system unconstitutional in 2011, the Bangladesh Supreme Court also referred to the "little man" remark.
"… if the little man cannot walk into the little booth with the little pencil to make his little cross on a little bit of paper to select his own representative, then democracy shall be a far cry and shall be in the Constitution only for the psychological satisfaction of the people of this country."
And it is the EC that always remains the focal point to ensure a congenial atmosphere for the "little man" to exercise his right to franchise. But history says it is the political will of the government of the day that determines the success and failure of the EC.
Take note that the five credible parliamentary elections held since the country's liberation were organised and conducted by those CECs and ECs who were not appointed through any search committee.
Yet the picks for the new EC may signal political developments in the coming days, leading to the next parliamentary election next year.
