| 00000 |
| The
election commission in the non-party caretaker
government regime |
| A.
H. Monjurul Kabir |
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| THE
preamble of the Constitution of Bangladesh chooses
'high ideals of democracy' as one of the fundamental
principles of the Constitution. Later in article
11, the People's Republic of Bangladesh has
been declared as a "democracy", where among
others, "effective participation by the people
through their elected representatives in administrations
at all levels" would be ensured. |
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| Democracy
is based on the existence of well-structured
and well-functioning institutions, as well as
on a body of standards and rules and on the
will of society as a whole, fully conversant
with its rights and responsibilities. Undoubtedly
the Election Commission is one of the most important
constitutional institutions with a wide mandate
of conducting local and national elections.
The 13th Amendment to the Constitution provides
for a unique constitutional arrangement in Bangladesh
whereby a Non-Party technocrat Government will
take over the state power from an elected government
for a period of not more than 90 days. And the
purpose is to assist the Election Commission
for holding a peaceful, free and fair general
election of members of parliament. It is interesting
to observe some of the dynamics of such temporary
election arrangement and its impact on the role
of Election Commission. |
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| Mandate
of the caretaker government |
| 000000000 |
| Taking
care of the national parliamentary election
is the sole agenda of the Non-Party Caretaker
Government. It is, in fact, an interim government
for carrying out the routine functions of that
stipulated period. Article 58D (1) specifically
provides that except in case of necessity for
the discharge of such functions, the Caretaker
Government shall not take any policy decision. |
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| The
term of the Caretaker Government is three months
within which it will have to hold the general
election of Parliament. Clause (3) of Article
123 plainly states: "A general election of members
of Parliament shall be held within ninety days
after Parliament is dissolved, whether by reason
of the expiration of its term or otherwise than
by reason of such expiration." |
| 000000000 |
| Act
of God? |
| 00000 |
| The
Caretaker Government cannot extend its term.
But what will happen in case of act of god (a
sudden and inevitable occurrence caused by natural
forces and not by the agency of man, such as
a flood, earthquake, or a similar catastrophe)?
The Constitution (Thirteenth Amendment) Act,
1996 does not deal with the situation. The Caretaker
government established under this amendment
has nothing to do with this type of 'extra-ordinary
emergency'. The 'act of god like situation'
has been recognised in the Constitution through
the Constitution (12th Amendment) Act, 1991
with limited application. |
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| If,
in the opinion of the Chief Election Commissioner,
it is not possible, for reasons of an act of
god, to hold an election to fill the seat of
Parliament which falls vacant otherwise than
by reason of the dissolution of Parliament within
the period of ninety days, such election, according
to article 123(4) shall be held within ninety
days following next after the last day of previous
period. The provision applies to the case of
by-election only. Clearly only the Election
Commission can decide whether a particular situation
amounts to "acts of god". |
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| Urgency
for an independent election commission secretariat |
| 00000 |
| Article
118(4) of the Constitution dictates that the
Election Commission is independent in the exercise
of its functions and subject only to the Constitution
and any other law. The provision has not yet
been implemented. In fact the issue of an independent
Election Commission has become a political rhetoric.
After thirty years of independence, the Election
Commission is still dependent on other ministries
including Ministry of Establishment and the
Prime Minister's Secretariat for any vital appointment. |
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| The
posts of Election Commission Secretary, Additional
Secretary and Joint Secretary are routinely
filled up routinely according to the dictates
of the Prime Minister's Secretariat even without
any consultation with the Chief Election Commissioner.
Recently the Parliament enacted the Upazila
Parishad (Amendment) Act 2001, which abruptly
took away the power of the Election Commission
to fix a date for the Upazila Parishad Election.
The Prime Minister ignored the repeated pleas
of the Chief Election Commissioner against such
attempt. |
| 00000 |
| The
Election Commission remains functional at local
level and plays important role including selecting
venues for poling stations, preparing electoral
rolls through the District Election Officers
(DEOs). Frequently the DEOs have to face severe
pressure by the local ruling party stalwarts,
sitting MPs and ministers. They are dictated
to select some particular place as poling centres
according to the convenience of those elements.
This unfortunate trend of harassing the DEOs
intensifies in the period prior to elections.
Sometimes the DEOs are threatened with dire
consequences including physical assault if they
do not obey the directives of the political
goons. This is, indeed, a grave situation, which
the Election Commission miserably fails to resist.
The Election Commission must empower the DEOs
with adequate logistics and administrative sanction
to overcome this ground reality. |
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| Under
the changed arrangement of Caretaker Government,
the Election Commission will have more influence
and dominance over the state of governance of
the country. The Chief Election Commissioner
should take the opportunity to create an enabling
environment for holding a free and fair election.
During the Caretaker regime, the Election Commission
virtually turns into the principal constitutional
agency of the state with specific constitutional
sanction. The Caretaker Government is constitutionally
duty bound to provide all possible aid and assistance
in the interest of a credible election and such
functions will not be deemed as 'policy decision'
as propagated by a vested quarter. The future
Caretaker Government should take necessary steps
to make the Election Commission Secretariat
independent and effective. |
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| It
is for democratic institutions to mediate tensions
and maintain equilibrium between the competing
claims of diversity and uniformity, individuality
and collectivity, in order to enhance social
cohesion and solidarity. The Election Commission
is one such key constitutional institution entrusted
with immense social responsibilities. The need
of the hour is a vigilant Election Commission
led by a decisive, strong and non-partisan Chief
Election Commissioner. The Commission must accommodate
the participation of all people in order to
safeguard diversity, pluralism and the right
to be different in a climate of tolerance. |
| 00000 |
| A.H.
Monjurul Kabir, Director, Law Watch, a centre
for studies on human rights law. He can be contacted
at mkabir99@hotmail.com |
