Under pressure from many directions, both national and international, the government has been promising that the 12th parliamentary election will be free and fair. Our constitutional scheme also mandates fair elections. International laws and covenants, such as The Universal Declaration of Human Rights and International Covenant on Civil and Political Rights, too, obligate us to hold such elections. Thus, if we are to abide by our Constitution as well as international laws, the government will have to ensure that the next election is free and fair.

It must be noted that free and fair election necessarily means competitive election, where not only will the major political parties participate, but each of them will also have an equal opportunity to win. Now the question is: what will it take for our next election to be credible and acceptable to all?

An important requirement of a free and fair election is that the electoral process is transparent, and credible. It must be recognised that the election is not a one-day phenomenon – it is a process involving multiple interrelated steps. They include the conditions that: (1) All eligible citizens can become voters; (2) All aspiring contestants can become candidates; (3) Voters have credible alternative candidates to choose from; (4) Scrutiny of the eligibility of candidates is fair; (5) Constituencies are delimited on the basis of a set of fair criteria; (6) Political parties and candidates can carry out their campaigns freely; (7) Antecedents of candidates are available for voters to make an informed choice in polling booths; (8) Candidates can field their agents in polling booths; (9) Voters are able to cast their vote without pressure or fear; (10) Influence of money and muscle on the election are effectively controlled; (11) Vote counting is transparent and accurate; (12) Election is monitored by credible election observers; and (13) Election disputes are settled speedily and impartially.

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The above steps, it must be noted, are laid out in the body of election laws, such the Representation of the People Order, 1972 and The National Voter Registration Act, 1993, which govern elections as a means of fulfilling Article 119 of our Constitution. Proper and impartial execution of these steps is an important prerequisite for preventing rigged elections.

Another important requirement for free and fair elections is the neutrality of certain critical institutions responsible for carrying out the above steps. Most important of these institutions are: the Election Commission (EC), the bureaucracy, law enforcement agencies, and the higher judiciary. The EC plays the most pivotal role and is constitutionally mandated to ensure credible elections.

Considering its importance, Article 118 of our Constitution mandates the creation of an independent EC. The Constitution also gives its members necessary protection so that they can act independently and impartially. Thus, the formation of an independent EC with people of impeccable integrity and courage is an important prerequisite for a credible election. Unfortunately, there have been serious concerns raised about the manner in which the present Commission was constituted over a year ago, and a case is now pending in the High Court questioning the issue of its transparency. The credibility of the EC has also been under serious question because of all the actions and utterances of its members.

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Although the Awami League-led Grand Alliance came to power in 2009 with a commitment to depoliticise the bureaucracy and law enforcement agencies, these institutions have been made subservient in many respects to the interest of the ruling party over the past decade. In fact, the partisan behaviour of these two institutions was instrumental in the questionable election of 2018. There are also allegations from the opposition of the court's undue interference in the scrutiny of candidates in the last election. Furthermore, not a single election petition filed after the 11th parliamentary election, to our knowledge, has so far reached its finality, creating the prospect of them ultimately becoming infructuous.

The seventh, eighth, and ninth parliamentary elections, held under the NCG, were considered to be credible by all neutral observers. In fact, the NCG was a settled matter and the Special Parliament Committee (formed to amend the Constitution by the ninth parliament), on May 29, 2011, unanimously recommended to amend the Constitution retaining the NCG, which unfortunately was changed after they met the Prime Minister the next day.

Another, and perhaps the most important, requirement of credible elections is the constitutional framework, which must be conducive to free, fair, and competitive election.

Our original Constitution provided for holding elections under the party in power and none of the parliamentary elections held under that constitutional framework was fair and credible. To remedy that situation, the 13th amendment of the Constitution was enacted by the BNP in response to a vigorous movement by an AL-led alliance, to create a neutral caretaker government (NCG), representing a consensus among major political parties. The seventh, eighth, and ninth parliamentary elections, held under the NCG, were considered to be credible by all neutral observers. In fact, the NCG was a settled matter and the Special Parliament Committee (formed to amend the Constitution by the ninth parliament), on May 29, 2011, unanimously recommended to amend the Constitution retaining the NCG, which unfortunately was changed after they met the Prime Minister the next day.

Subsequently, the AL-led Grand Alliance, in a majoritarian manner, unilaterally passed the 15th amendment to abolish the NCG and hold future elections under the party in power. The amendment was passed by taking advantage of the Supreme Court's short order of May 10, 2011, and also, according to experts, an unconstitutional constitutional amendment ("The Constitutionality of 15th Amendment," The Daily Star, February 8, 2023, by author). The amendment essentially tilted the electoral field in favour of the ruling party, which will prevent the EC from meeting its constitutional mandate to hold credible elections. Thus, unless a new political settlement is reached to amend the Constitution to create a neutral election-time government, the hope for a free, fair, and competitive next election would clearly be a mere pipe dream.

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The Constitutionality of 15th Amendment

For the 12th parliament election to be free, fair, and credible to meet the demands of all concerned, the electoral process not only needs to be fair but all relevant institutions must also act neutrally. More importantly, the prevailing constitutional scheme must create a level playing field and provide equal opportunity to all political parties. In fact, our Constitution, according to constitutional expert Mahmudul Islam, "does not envisage anything else than free and fair election and any law which stifles the hands of the Commission in ensuring free and fair election will not pass the test of constitutionality" (Constitutional Law of Bangladesh, 3rd Edition, p. 973).

Dr Badiul Alam Majumdar is secretary of SHUJAN: Citizens for Good Governance.

The Jatiya Oikyafront yesterday demanded that the Election Commission immediately scrap the “farcical election” and hold a fresh one under a nonpartisan interim government.

“We reject this so-called result. At the same time, we demand fresh polls under a nonpartisan government,” Oikyafront leader Dr Kamal Hossain said at a press conference at his house in the capital.

Reading out a written statement, the eminent jurist said the news of “vote robbery” came from almost all constituencies.

Responding to a query from a journalist, BNP Secretary General Mirza Fakhrul Islam Alamgir said yesterday's election proved that free and fair polls were not possible under a partisan government.

“This also proves that our decision to boycott the parliamentary elections in 2014 was right.”

Kamal said the Oikyafront would hold a meeting today to devise its strategy. The alliance's ongoing movement “to institutionalise democracy” would continue, he added.

Apart from the Oikyafront, the Left Democratic Alliance, comprised of eight left-leaning parties, and the Ganasamhati Andolon rejected the polls and demanded a reelection.

51 BOYCOTT POLLS

As many as 49 BNP and two independent candidates boycotted polls during voting yesterday, bringing allegations of vote rigging, stuffing ballots and forcing polling agents out of centres by the ruling party men.

Other allegations include capturing of polling stations by AL men, rigging votes and barring voters from exercising their franchise.

However, the BNP didn't boycott the polls as a party.

Out of the 49 candidates, 22 are Jamaat leaders who ran on BNP's ticket.

In some districts, almost all the opposition candidates boycotted the polls. In Bagerhat, all four BNP nominees abstained from the election.

Eight out of 11 BNP candidates in Mymensingh boycotted the election. In Khulna, five out of six BNP and Oikyafront candidates opted to stay out.

Faridpur and Jhenidah saw three out of four BNP nominees boycotting the polls in each of the districts.

Jamaat leader Mia Golam Parwar, who ran on BNP's ticket in Khulna-5, first announced that he was boycotting the election over “barring voters from entering polling centres, arresting his party men and the returning officer's inaction”.

Around the same time, Shama Obayed boycotted the polls in Faridpur-2 alleging that AL men stuffed ballots in 100 out of 123 polling centres on Saturday night.

“My polling agents went to the polling centres, but they were forced to leave the centres by police and ruling party men,” the BNP nominee told The Daily Star.

Shama also said she even didn't cast her own vote in protest.

In Dhaka-1, independent candidate Salma Islam boycotted the polls around noon.

Speaking at a press conference at her house in Nababganj's Jamarkhola area, she said she stayed out of the election as it was “rigged”.

Andaleeve Rahman Partha, BNP candidate for Dhaka-17, boycotted the polls around 2:00pm citing that some 600 of his polling agents were forced out of the centres and assaulted by AL men.

JAMAAT BOYCOTTS POLLS

Meanwhile, Jamaat-e-Islami in a press statement yesterday said its leaders, who contested the polls with “sheaf of paddy”, boycotted the election.

Terming the election “a farce”, it demanded cancellation of the polls.

BNP's Mirza Abbas and his wife Afroza Abbas boycotted the polls in Dhaka-8 and 9 alleging that voters were deprived of casting their votes. The couple also refrained from exercising their franchise.

Speaking at a press conference at his Shahjahanpur home, Abbas said, “Such an election is not needed in the country in which people cannot cast their votes. We are rejecting the election result.”

Independent candidate in Kurigram-4 Imran H Sarker, also spokesperson of Ganajagaran Mancha, alleged that AL men were casting fake votes in Chilmari's Nayarhat and Astamir Char areas.

COMPLAINT LODGED WITH EC

Around noon, a BNP delegation in a written complaint informed the EC that its polling agents were obstructed from entering polling centres in 221 constituencies.

“Our polling agents are being intimidated and obstructed from entering voting stations. In some cases, they are being driven away from the polling stations or being arrested,” BNP Joint Secretary General Moazzem Hossain Alal, who led the delegation to the EC, told reporters.

He said they received the information from reliable sources. There were similar complaints from other constituencies as well, but those came from unconfirmed sources, he added.

Alal alleged that AL activists were committing irregularities with the help of law enforcers.

The BNP submitted the complaint, signed by party National Election Conducting Committee Chairman Nazrul Islam Khan, to the chief election commissioner.

Alal said voters were not being allowed to enter polling stations in many places and women were being asked to vote for AL candidates.

The party also accused the AL of stamping ballots the night before the polling day in more than half of the 299 constituencies.

“Ballots were being stamped with the help of law enforcement agencies and polling and administration officials,” the BNP said in its complaint.