Current Affairs

Shedding Crocodile Tears

The issue of empowering the Election Commission is going to
be crucial in the days to come

SHAKHAWAT LITON

When History Repeats Itself

In the run-up to the parliamentary by-polls in the Dhaka-10 constituency, held on July 1, 2004 the then Bangladesh Nationalist Party (BNP)-led government did not deploy army in line with the requirements of the Election Commission and an order of the High Court.

The then EC had asked the government to deploy army at every polling centre of the constituency on the polling day. But the government had refused to do so and made it clear a few days before the polls. The refusal prompted some opposition parties' candidates to go to the High Court against the government decision.

In response, the High Court had directed the government to deploy army in line with an EC decision, upholding the article 126 of the constitution that says: "It shall be the duty of all executive authorities to assist the Election Commission in the discharge of its functions."

But the government neither honoured the EC's decision nor the court's order. It, however, deployed army personnel in the by-election, who patrolled the streets and were not stationed at the polling centres. The by-election was rigged in favour of the ruling BNP candidate.

In the morning of July 1, the then opposition leader Sheikh Hasina blasted the then BNP-led government saying, "This government violated the order of the court and did not deploy army in every centre." The then acting chief election commissioner Safiur Rahman said the High Court's order on army deployment at every polling centre was violated.

The then ruling BNP, however, on that day claimed the by-election was free, fair and peaceful and that the court's order on deployment of army at each polling centre was not violated.

"Troops were very much present at each centre and were on movement within half a minute's distance from the centres," claimed the then BNP Secretary General Abdul Mannan Bhuiayn.

The BNP-led government also refused to deploy army in the countrywide Union Parishd elections held in early of 2003 as per the EC's requirements.

Seven years after the Dhaka-10 by-election, the EC got a tougher response from the government led by Sheikh Hasina on deployment of army in the Narayanganj City Corporation (NCC) polls held last October.

The EC on October 16 sent a letter to the Armed Forces Division (AFD), asking it to deploy four companies of army personnel for five days from October 28 morning to maintain law and order in the election areas.

The government did not care about its constitutional obligation to deploy the army for the NCC polls as per the EC requirement. It not only refused to meet the EC's requirement, but also completely ignored it, and did not even show the courtesy of communicating with the EC about the matter.

It annoyed and frustrated the EC. But it is not for the first time that this has happened. The government did not meet the EC's requirements for army deployment at the by-elections in Habiganj-1 and Brahmanbaria-3 constituencies in January this year. Asked if the government had violated the constitution by not deploying the army in the NCC polls, CEC ATM Shamsul Huda said, “Yes, it is a violation of the constitution.”

Legal experts and the opposition political parties also accused the government of violating the constitution for not deploying the army in the NCC polls as per the EC's requirements.

But this time Sheikh Hasina took a stance contrary to the one she took in July 2004 during the Dhaka-10 by-election. Hasina, who also holds defence portfolio, categorically said that the constitution had not been violated by not deploying the army in the NCC election.

This is the dark side of the country's confrontational politics and this is how the country's top politicians shed crocodile tears for the constitution and for the EC. This is how the definition of violation of the constitution carries different meaning for both the AL and the BNP when they are in power and in opposition.

Interference Brings Disaster

Defending her government's decision not to deploy the army in the NCC polls, Hasina said that the situation during the NCC polls didn't necessitate the deployment of the army.

Hasina made the comment only after the polls were held in a peaceful manner. She didn't say anything about the deployment of army after receiving the EC's letter. Her government could have discussed the issue with the EC. But it didn't pay any heed to the EC's requirement. Its indifference to the EC's request prompted legal experts to call it interference with the independence of the EC.

Deployment of army in the general elections is a major issue. Photo: Amirul Rajiv

During the past BNP-led government, the then CEC MA Syed repeatedly wrote to the then PM Khaleda Zia to transfer the then secretary to the EC Secretariat, SM Zakaria, for his controversial role in the secretariat. But the then government did not respond to the CEC's request. Rather, the BNP later rewarded Zakaria by appointing him an election commissioner.

Appointment of Justice MA Aziz as the CEC and some other election commissioners by the past BNP-led government made the EC "a source of people's entertainment". Thankfully, the commissioners had to resign following the declaration of the state of emergency in January 2007.

The constitution declares that the EC shall be independent in the exercise of its functions – ensuring free, fair and impartial elections – and be subject only to the constitution and to the law. The constitution vests the superintendence, direction and control of the preparation of the electoral rolls for the presidential and parliamentary elections and conduct of such elections in the EC.

In Afzal Hossain versus Chief Election Commissioner case, the Supreme Court observed that the commission has to supervise, control and direct each and every step of the process to ensure free and fair election and the commission must be deemed to have all the power and discretion to ensure free and fair election as that is the manifest intendment of the constitution in providing for the EC.

But the constitutional provisions could not ensure smooth growing of the EC since the country's independence, as all successive governments led by politicians and military rulers meddled in the functions of the EC. And finally the interference of the then BNP government (1991-1995) in the EC's functions had contributed to the birth of the unconstitutional caretaker government system (CG) in 1996.

The Road Ahead

It is already evident that making the EC unable to perform independently will in no way contribute to strengthening the commission in light of the constitutional provisions. The government in June this year abolished the CG that used to assume power for three months to provide all assistance to the EC for holding the parliamentary polls. In doing so, the government used the Supreme Court verdict that declared the CG unconstitutional.

The current constitutional provisions say that the next parliamentary elections will be held under the incumbent AL- government. But the BNP-led opposition parties have been vehemently opposing to join the polls under the AL-led government. They have been agitating to force the government to reinstate the CG in the constitution. The AL is sticking to its gun to reject the opposition demand, saying the unconstitutional CG cannot be reinstated.

Therefore, the two rival camps, led by the ruling AL and opposition BNP, are now at loggerheads over the question of the CG before the next spate of parliamentary elections.

The government has to play more constructive roles to build confidence of the people in its oft-preached political stand of making the EC stronger to hold the next parliamentary polls without reinstating the CG.

It has to prove that the EC can perform its functions independently when a partisan government is in office. By refusing to deploy army in the NCC polls, many political analysts say, the government reminds people again the kind of hurdles the EC faces when a partisan government is in office.

So, the AL-led government has to do many things in the coming days to demonstrate its goodwill for making the EC stronger enough to hold free and fair parliamentary polls without reinstating the CG.

The biggest challenge the government will have to handle is in next February when the tenure of the incumbent CEC and two other election commissioners will expire. The new EC will have to be constituted through new appointments. Making the appointments acceptable to all, particularly to the opposition parties, seem to be one of the toughest things to do in the confrontational culture of the country's politics.

The AL-has already declared that it wants to make the appointments through holding discussion with the opposition parties. The failure to reach a consensus over the appointments may further deteriorate the political atmosphere centering the next parliamentary polls.

Hasina should not cite the wrongdoings that had taken place during the BNP government's regime to justify her government's mistakes. She should not forget that the BNP government's failure to let the EC perform independently gave birth to the caretaker government system. And now the future of restoration of the CG largely depends on the current government's future activities.