Election constitutes an entry point for democratization through representing the general will of the people. In modern representative democracies, as far as most decisions and decision making are concerned, citizens participate indirectly through elections. For achieving these objectives, elections have to be free, fair and transparent so that voters’ wish can be reflected. Here the legitimacy of the electoral process is crucial for the establishment and maintenance of a healthy democratic order where electoral reform can be considered as an inherent feature of a sound electoral system. The Bangladesh Election Commission (BEC) as Election Management Body (EMB) has to organize a free and fair election enshrined in the constitution, conduct free and fair election for continued democracy in Bangladesh. As electoral reform directly affects the functions of the Election Commission along with its powers and obligations. Indeed, the effect of the change takes firm root if the democratic values are well established. Since the restoration of parliamentary democracy in 1991, all the party governments initiated several electoral reforms, but these reforms were not widely acceptable due to their partisanship trends and tendency towards electoral manipulation. The legal arrangements for conducting free, fair and acceptable elections in Bangladesh are stronger than other South Asian countries, but the practical, and social arrangements do not allow the free and impartial elections. Conditions are much poorer than in India, Pakistan, and Sri Lanka. This paper examines the state of electoral reform in Bangladesh considering historical changes of constitutional and electoral laws, political contexts, the role of political actors, etc.
Electoral reform is a continuous process, and it includes entire length and breadth of the electoral system and is not confined to choosing a voting system to elect representatives only but beyond that (Hussain, 2012: 18). Electoral reform is a broad term that covers, among other things, improving the responsiveness of electoral processes to public desires and expectations which catch the public eye when it involves changes to representational arrangement (Hazan, 2012: 5). The meaning of reform is to add, delete, modify, alter or replace with modifications for the future requirement and the future condition and the present challenges, based by the failures in practice for the improvement of the existing (Kashyap: XIV).
Figure: The Electoral Reform Cycle (Wall, 2006: 16)
Electoral System in Bangladesh
Bangladesh follows a multi-party democratic system with a parliamentary form of government. A sovereign unicameral parliament, elected for a five-year term, is the legislature of the country (Jahan, 2005: 139). The constitution of Bangladesh lays down the composition and electoral system. In that Article 65 (2) provides, “Parliament shall consist of three hundred members to be elected in accordance with law from single territorial constituencies by direct election……” and Article 65 (3) offers that 50 reserved seats for women members will be elected by the aforesaid members on the basis of proportional representation in the parliament through single transferable vote. However, analyzing Article 65 (2) and (3) it would appear that Parliament consists of 350 seats in which 300 members are elected from single-member constituencies on FPTP on multi-party system and 50 seats on proportionate representation in an indirect election based on the number of party members in the parliament (Hussain, 2012: 42-44).
Bangladesh Election Commission (BEC)
After the British ruling wiping out from the Indian Sub-Continent, Pakistan Election Commission was first emerged in 1956 with one Regional office in erstwhile East Pakistan. BEC was established soon after Bangladesh was liberated, as structured under the constitution of 1972. BEC was strengthened and further structured on the sound footing with the enactment of the most important electoral law as the Representation of the People Order 1972 (RPO-1972). Some rules and regulations were also enacted in the same period. Under the new order, the voting age was lowered from 21 to 18 years. Under the constitution and as per the procedure set in the RPO the first parliamentary elections in Bangladesh was held on March 7, 1973.
BEC in Bangladesh Constitution
Election Commission, in most cases, derives power from the constitution. BEC is a constitutional body set up under Article 118 stipulates that:
(1) The BEC shall be consisted of the Chief Election Commissioner (CEC) and not more than four Election Commissioners, and they shall be made by the President.
(3) Subject to the provisions of this Constitution the term of office of an Election Commissioner shall be five years from the date on which he enters upon his office.
(4) The EC shall be independent in the exercise of its functions.
Power and Functions of the BEC:
Institutionally BEC is much enriched having vast powers and functions. Article-119 of the Constitution of Bangladesh deals with the functions of BEC.
Article 119(1): (a) Hold elections to the office of President;
(b) Hold elections of members of Parliament;
(c) Delimit the constituencies for the purpose of elections to Parliament; and
(d) Prepare electoral rules for the elections to the office of President and Parliament
Article 119(2): The Election Commission shall perform such functions, in addition to those specified in the preceding clauses, as may be prescribed by this Constitution or by any other law.
The Representation of Peoples Order, 1972
It outlines the elaborate powers of the Election Commission. It is empowered to:
- Appoint of Recruiting officers to supervise all work in the district in connection with the conduct of elections.
- Withdraw any officer performing any duty in connection with an election,
- Fixation of the date of submission of nomination papers, scrutiny of nomination and withdrawal of nomination paper and date of the poll
- Regulating and monitor the registration of the political parties
- Prepare electoral codes of conducts
Electoral Reforms in Bangladesh
Review of Electoral Reform Initiative: Reforms 1972-2006
In the last three decades some assorted attempts were made to bring some changes through reform of various laws relating to BEC structure and electoral law aiming to achieve:
Effort to Reform Electoral Law:
The effort to Reform Electoral Law: Over the decades, efforts were taken to bring a particular amendment to laws about the functioning of the secretariat, its roles and enhance the authority of the BEC and electoral procedure. Some significant changes were brought to RPO 1972 in that said period. Articles 91A, 91B, 91C, 91D, and 91E were included in 2001. These newly included articles deal with the following issues:
13th Amendment of the Constitution and legal journey of the NCG
The Constitution Act 1996 was passed on 26 March 1996. It provided for an NCG which, acting as an interim government, would give all possible aid and assistance to the BEC for holding the general election peacefully, fairly and impartially. The NCG, comprising the Chief Adviser and not more than ten other advisers, would be collectively responsible to the president and would stand dissolved on the date on which the Prime Minister entered upon his office after the constitution of the new Parliament (Ahamed, 2012).
Enlarging the Disqualification
The significant changes in the provision of 1978 where the exclusion criterion for the candidates those were expanded, and few more provision were added. This gave authority to BEC to cancel membership in the parliament if subsequently found that one was ineligible to be a candidate under sub-clauses of Article 12(1) of RPO-1972 dealing with disqualification of candidates. Loan Defaulter clause was expanded in 2001 that included loan defaulter being director of any company or any financial institution adding sub-clause 12(a) and (b).
Registration of Political Parties
Chapter IV A was added in 2001 regards to registration of political parties. Initially registration under Article 90A was made compulsory but later it was made optional with few simple conditions. The Article had no provision of party accounting or conditions to practice internal democracy (Eicher, 2010: 88-91).
Code of Conduct Rules
Code of Conduct for the candidates was promulgated in 1996, and it was further amended in 2001, but it did not have separate punishment section for violation.
Voter Identity Card
This step, with the amendment of RPO 1972 in 1994, was taken to identify voter with the list issuing a separate photo identity to reduce fraudulent voting and to prevent bogus voting. GOB sanctioned the project was then extended up to June 2001. But the effort failed as the execution was made without forethought and meticulous planning.
Election Reforms: 2007-2008
The tumultuous political conundrum that started at the end of 2005 and beginning of 2006 over the probable appointment of Justice KM Hassan as CEC became a primary cause, but soon it engulfed the electoral process and the BEC. The electoral environment, over the years, was undermined by the prevalence of ‘black money and muscle power,’ two interlinked problems that were widely considered endemic to politics and the electoral process. During 2007-08 under the guidance of the CEC Dr. ATM Shamsul Huda, massive electoral reform was initiated in the areas of voter turnout and representations, delimitation of constituencies, voter registration, registration of political parties, structural reform of EC and improving electoral integrity, etc. However, the major areas of improvement are:
Review and reform of electoral laws
Amendments to the RPO and other legislation were at the core of the BEC and CTG’s efforts not only to make technical improvements in election management but also to affect the conduct of Representation of the People Amendment Ordinance, 2008 on 19 August 2008, included 67 changes to the law. The most significant of these were:
Change of Polling Stations (Article 8): Change was brought in as regards to finalization of the polling stations. Sub-clause (1) was modified, and the control of maintaining the list was kept within the domain of the BEC. Sub-clause (2) modified in that the period for registering a public objection on the provisional list of polling center was increased from 15 to 25 days. Sub-clause (5) was inserted new in which the BEC was provided with the power to change any polling station even after publication of gazette.
Disqualification: Changes were brought to nominations requirements (Article 12, Clause 1 and Article 3a). New sub-clauses were added to Article 12(1) as Sub-clause (a) makes it mandatory ‘to be a voter in any constituency.’ Sub-clause (b) restricts candidate nomination by the registered political party only, except independent candidate. Sub-clause (f) limits ‘any government or statutory public authority ex-service holders’ from contesting election unless three clear years passed since retirement or resignation.
Reducing Number of Constituencies for Individual Candidate: Article 13A (3) reduced the number of constituencies an individual candidate was allowed to compete in from 5 to 3.
Reducing Number of Polling Agents: Article 22(1) reduced the number of polling agents of a candidate to one agent per polling booth.
Election Expenses-Chapter IIIA: The maximum allowable election expense per candidate has been raised to 15 lakh taka from 5 lakh (Article 44B, Clause 3) allowing more time for submitting reports on campaign expenses (Article 44C, Clause 1).
Empowering the BEC to cancel a contestant’s candidacy upon receiving and investigating reports of serious illegal activity (Article 91E).
Preparation and maintenance of accurate electoral roll
In this area, the following reforms are done as:
Preparation of Digitized Electoral Roll: One of the most significant and far-reaching innovations of the 2008 election was the decision to create electoral rolls that would include photographs of each of Bangladesh’s more than 80 million eligible voters. BEC analyzed the issue and tended to change voter habit from ‘passive participation to active participation. The idea of digitalized photo electoral roll (National ID) was conceptualized by BEC with the technical help from experts within the country that included Bangladesh Armed Forces.
The methodology of voter registration: The final method remained subject to ongoing lessons learned and particular circumstances. Voter registration involved a range of actors, including BEC staff, Armed Forces’ officers and enlisted men, local officials and leaders, and civil society organizations. A National Steering Committee on Voter Registration was formed in May 2007 to provide overall guidance for the registration process. Headed by the CEC, it was composed of the two other Commissioners, representatives of the Armed Forces, officers of the ECS, and representatives of the government and UNDP (Elections in Bangladesh 2006-2009: Transforming Failure into Success, p.79).
Electoral Roll Rules 2008: In pursuance of Article 16 of the Electoral Law BEC enacted the rules that envisaged among other rules, the step procedure for the preparation of the digitized photo electoral roll.
Inclusion of ‘No’ Vote Provision:
The BEC had moved to introduce ‘No’ vote provision, empowering voters a choice of ‘None of the Above’ among the candidates contesting polls. The government promulgated the RPO (Amendment) Ordinance 2008 on 19 August. The RPO-2009 kept the ‘No’ vote provision in two sections. As Article 31(A) provision allows voters to exercise negative voting and reject all candidates in their constituencies in case of none could be found worthy of being elected where Article 40(A) of the ordinance clearly gives a message of re-polling if the number of ‘No’ votes exceeds the number of ballots of the candidates bagging the highest votes.
Political Party Registration:
The requirement for political party registration was one of the most significant electoral reforms undertaken by the BEC and CTG. Previously, political party registration had been voluntary, open to any party willing “to avail itself of the privileges provided…on payment of such fee as may be prescribed” (RPO 1972, Article 90A(1)). The provisions of Article 90B of the amended RPO require that a party must meet a set of characteristics to qualify for registration. Additionally, registered political parties are restricted from receiving funds from foreign people or organizations (Article 90F, Clause 2). Under Article 90E, the BEC has the final decision on party registration.
Reform of the Election Administration
The reform of the election administration took place in the following areas:
Election Commission Secretariat Ordinance 2008/Act 2009: With the promulgation of the Election Commission Secretariat Ordinance, 2008, the ECS was formally delinked from the Prime Minister’s Office. The Ordinance stated that the ECS “shall not be under the control of any Ministry, Division or office of the government.” After 2008, the elected grand alliance government led by Awami League, in line with constitutional provisions, transformed the Ordinance into an Act of the Parliament on 24 January 2009 (Banglapedia, 2009).
Changes in election administration: Beyond the well-publicized issue of the formal status of the ECS, the BEC undertook a broader reorganization of election administration before the 2008 elections, which was aimed at improving the staff’s impartiality, professionalism, and commitment. This was accomplished through a variety of means, including testing, recruitment, training and developing a better career track for permanent personnel. The training of polling staff is organized by the Electoral Training Institute (ETI).
BEC Field level reorganization: According to the BEC’s electoral roadmap, internal restructuring of the ECS was supposed to take place over the course of 2007. In addition to separating the ECS from the Prime Minister’s Office, this included reforming the ECS-internal recruitment and appointment rules, and making a decision on whether to retain local BEC staff appointed in late 2006.
Candidates Code of Conduct Rule for Political Parties and the, 2008:
This was the most critical of the rules which ensure the behavior of the party and the candidates during the entire election process particularly the conduct of the campaign. The rule has been freshly drawn as part of the whole reform processes. The Code of Conduct Rule aimed at reducing expenditure, violence and to bring discipline to the campaign. The rule has the provision for punishment for the violations that includes imprisonment to the cancellation of the candidature. (Article 44B(3A))
Electoral Reforms from 2009-2014
The reforms in the electoral process from 2009-2014 are:
15th Amendment of the Constitution and Abolition of CTG: The unilateral adoption of the 15th Amendment by the Parliament on June 30, 2011, which abolished the system of Caretaker Government (CTG) from our Constitution. It also declared that elections will be held under incumbent government following a verdict of the illegality of CTG by the Supreme Court (Majumdar, 2013).
Electoral Law 2009: The Ordinance that was promulgated in 2007 under which the preparation of digitized electoral roll was legalized and given legitimacy by the ninth parliament on 24th February 2009 replacing the Electoral Roll Ordinance no LXI of 1982.
Annulment of ‘No’ Vote: Responding to a Public Interest Litigation (PIL) writ petition, the High Court on 24 November 2013 issued rule asking the government and the BEC to explain why they should not be directed to bring an amendment to the RPO. Finally, the High Court dismissed the writ petition of ‘No’ vote on January 19, 2014, and the provision was abolished.
Role of Political Parties and Civil Society in Electoral Reforms of Bangladesh
Political Parties: Political parties are essential institutions of a democratic society. These facilities are based on ideals which are propagated through agenda and implemented when in power. The election is the only legitimate means to secure power through people’s legitimate vote. In the sphere of electoral reform, mainstream political parties of Bangladesh played a key role as: movements for establishing NCG constitutionally since 1991-till now, demanding a photo voter roll for accuracy and transparency by AL and other parties, registration of political parties, inner party democracy, introducing EVM, etc. (AL Newsletter, 2006). But the legislative history shows that no political parties ever vented into the reforms as long as it suited them. Partisan view persisted as long as parties felt they could reap the benefit in the way of ‘status quo.’
Civil Society: The political element of many civil societies facilitates better awareness and a more informed Public who make better voting choices, participate in politics, and hold government more accountable as a result (Almond and Verba). Over the last two decades, there has been the astounding growth of vibrant civil society in Bangladesh. Civil society organizations like SHUJAN, CPD, BILIA, JANIPOP, TI, IDEA, Democracy International and few others who continuously made public aware of the need for electoral reforms to lay a solid foundation for sustainable democracy through seminars, workshops, using media. SHUJAN’s ‘Electoral Reform in Bangladesh: A Primary Proposal’ in 2006 and CPD’s ‘12 points’ for ensuring free and fair elections before the 9th parliamentary elections were some plans for ensuring sustainable electoral democracy. Members of civil society always play a pivotal role in electoral reform in the following areas: participating in NCG, demanding clean imaged candidates by political parties, reforms of electoral law, check on the use of black money, etc.
In a nutshell, it can be argued that the electoral reform has to be based on an effective methodology to achieve the aim of free and fair election as a stepping stone for establishing a strong democratic culture and the reform should be continuous rather than periodical process. Here the useful function of EC empowers the electoral process ensuring free and fair election and promotes democratic values for an efficient electoral system of a given political system. But in the case of Bangladesh free and impartial elections remain a far cry due to high partisanship tendencies of the party governments, political appointments in the EMBs, distrust among political parties and people on the EMB, controlled civil administration, and weakness within the civil society organizations and so on. Nevertheless, Bangladesh will be a living example of practicing electoral democracy if the institutional arrangements for conducting elections become able to function neutrally and legally by both separations of power and checks and balances principles.
The figures reported in the article has been taken from authentic sources. Footnotes/endnotes are available upon request from the author of the article.