Column by Mahfuz Anam: Elections - déjà vu or a move forward

Our next election is not due for two years—at the end of 2023. For many countries, it is too early to talk about it. But not in our case. To hold a proper election, there will be endless talks, mostly one-sided, as we have not made any progress in sitting together and accommodating each other's positions and moving on. We'll have what's called a "dialogue of the deaf" in which we will fling invectives at each other, accuse one another of the vilest of crimes, and denounce the other side as depraved, despicable and mean. We will seldom listen and even more rarely find any merit in what the opponents are saying. Thus, valuable time will pass, nothing will be resolved, and intolerance will grow. Consequently, elections will be more and more controlled by law enforcers.

It is with this sense of déjà vu that the debate over the formation of a new Election Commission (EC) has begun. The current EC's term expires in February 2022. Everyone wants an independent EC, which is a precondition for holding a free and fair election, and the government continuously assures us that it will definitely come our way. For that to happen, we need an accountable, transparent and credible process of EC formation, which is what is being debated today—how to form an EC that can deliver a free and fair election? What is that magical process that can bring forth a group of independent-minded, courageous, unafraid individuals enjoying huge public credibility—the "magnificent five"—who will be able to deliver an acceptable election?

The constitution had envisaged a full-fledged law to form this all-important body. It was not done during the country's first general election in 1973. After Bangabandhu's assassination, we found ourselves in the throes of military dictatorship, and the question of fair election was never on the cards of these dictatorial and semi-dictatorial regimes. Our real quest for free and fair elections started with the fall of Gen. Ershad's regime in 1991. Since then, we have had six elections—in 1991, 1996, 2001, 2008, 2014 and 2018—but the law for the formation of the Election Commission, as envisaged in the 1972 constitution of the country, has remained elusive. Why successive governments—from both the AL and BNP—showed such reluctance to formulate this law became clear as we saw the functioning of the present and previous ECs.

With the fall of Gen. Ershad's regime, the political consensus was that no acceptable election can be held under the autocrat's watch, and so the device of an "interim" government under the then chief justice – Shahabuddin Ahmed – was put into place. While the election of 1991 measured up to global standards, it was not accepted by the party who lost, terming the results as a product of "Shukkho Karchupee" (subtle rigging). 

With the BNP in power in 1991, the Awami League concluded that no free and fair election could be expected under Khaleda Zia's government and so it demanded—and ultimately established—a "caretaker government" to be installed for 90 days after the expiry of the term of an elected government simply to deliver the election and hand over power to the newly elected government. Four elections were held under this system with the last one in 2007/8—under a military-backed caretaker government and hence most controversial—that gave the present ruling party a resounding victory.

The Awami League, which had pushed for the caretaker government with a vigorous mass agitation over three years in 1994-96, did away with it in 2011, perhaps taking lessons from the fact that under the caretaker government system, the ruling party always lost. We are back to elections being held under party government. Now, the BNP, which had opposed tooth and nail the concept of the caretaker government, wants its reinstitution as it does not believe that a free and fair election under the Awami League government is possible.

So we have come full circle—from party-led election-time government back to party-led government after an experiment with the caretaker model. With the latter abolished, the focus naturally fell on the vital institution of the EC, whose credibility appears to be the lowest among similar bodies in all our neighbouring countries, who are not known to wrangle over EC formation as we do. In India, national elections are held in phases and go on for months, without ever raising the issue of neutrality of their EC. Even with the severe acrimony between the BJP and the Trinamool Congress and the personal bad blood between Prime Minister Narendra Modi and Mamata Banerjee, the neutrality of their EC has never been questioned. This is one example, among many others, of how we have failed to build institutions after 50 years of Bangladesh and 30 years of democracy.

The current debate is on how to make the new Election Commission really live up to public expectations. There is no question that the last EC and the incumbent one have left much to be desired in terms of delivering credible elections. Both these bodies appear to have taken their task purely from legalistic and clerical points of view. Even the fact that there is an ocean of difference between the letter of the law and the spirit of the law seems to have escaped them—a classic example of "missing the forest for the trees". We can recall here a doctor's attempt to put a positive spin on an otherwise tragic situation when he said, "though the patient died, the operation was successful". With our "successful elections", democracy may have died or is at least in the ICU, hooked up to a high-flow oxygen machine, to use a Covid-time analogy.

One single fact helps to illustrate the frustration of the voters. In the 2014 election, 153 contestants became members of the parliament without a single vote being cast. They were all the sole candidates from their respective constituencies. In a House of 300 members, the "uncontested" MPs formed the majority. They had enough seats to form the new government, and all were "elected" without the casting of a single vote. The total number of voters during the 2014 election for all 300 seats was 9.19 crores. The total number of voters for the 147 seats in which the election was held was 4.31 crores. A total of 4.88 crore voters could not vote in the 153 constituencies where the election was not held. Shouldn't it have concerned the EC that 53 percent of voters were unable to cast their votes?

The above process had all the hallmarks of being legal. But was it morally and ethically correct? Did it strengthen our democracy, our faith in the electoral process, our belief that "the will of the people matters"? Is it the role of the EC just to ensure the logistics of election and be totally oblivious to its moral moorings? These "uncontested" MPs may have the seal of the EC, but did they have the seal of "legitimacy" that comes from voters' endorsement? Shouldn't these issues have crossed the minds of our EC members? The fact that election is as much a moral, ethical and democracy-strengthening exercise as it is a legalistic one never seemed to have been a part of their thinking.

"The people who cast their votes decide nothing. The people who count the votes decide everything". This observation, made many years ago, seems to have an uncanny resonance with the present-day reality of elections in many countries, including ours—especially ours. Over the years, the process of counting the votes in elections has acquired central importance for the contesting political parties—with an inbuilt and unsurpassable advantage for the party in power. Not which way the voters voted but how the counting is taking place has emerged as crucial in determining the outcome of voting, reducing our elections into an exercise of expressing the loyalty of certain institutions—like the police, bureaucracy, etc.—who can render invaluable services in the counting process. 

So far, the government's position is "no going back" to the caretaker system and to repeat the "Search Committee" process of the past in forming the new EC. If we recall the last instance of forming a search committee that brought about the current EC, the President held discussions with all registered political parties and then announced the formation of a six-member search committee consisting of a judge of the Appellate Division, a High Court judge, the chairman of the Public Service Commission, the Comptroller and Auditor General, the Pro-VC of Chattogram University and a Dhaka University professor. You cannot find any fault with such a body. They were given 10 working days to prepare a list of 10 candidates, two for the CEC position and the remaining eight for the position of four EC members. The search committee held extensive discussions with a cross-section of the people and made their submission to the President who, later, announced the formation of the new Election Commission and named its chief. 

This is all very good, except that Article 48(3) of the Constitution states: "In the exercise of all his functions, save only that of appointing the Prime Minister pursuant to clause (3) of article 56 and the Chief Justice pursuant to clause (1) of article 95, the President shall act in accordance with the advice of the Prime Minister" (emphasis ours). Article 48(3) obliges the President to consult with the Prime Minister at every step of forming the new EC. While forming the search committee, while accepting the recommendations of the search committee, and most importantly, while finalising the formation of the new EC—the President must, as per our constitution, consult with the Prime Minister. Consulting with the PM on every issue is another matter, but taking her advice in forming the new EC under which the coming election will be held—in which she and her party will contest—raises difficult questions of neutrality and independence that cannot be ignored. Judging from the performances of the last two ECs, these questions are larger than life to every voter today.

Let us not forget that at its core, an election is a vital exercise in nation building. If there are many building blocks of democracy, then election, unquestionably, is its strongest piece. We are hoping to graduate from the Least Developed Country (LDC) group and become a developing country by 2026. Hence, making the election of 2024 free and fair should be a part of the process of that graduation. As we climb higher in the development ladder, so must we in the democracy ladder, and without credible elections we cannot do so.

We remind all that if allowed to be free and fair, an election can truly be a blueprint for the future, written by the voters with the ink of their wishes in the bright colours of their hopes and aspirations.

Mahfuz Anam is editor and publisher of The Daily Star.