Three legacies of the Election Commission

The 12th Election Commission (EC) of Bangladesh, headed by KM Nurul Huda, completed its tenure on February 14, 2022. With its term coming to an end, some obvious questions arise: What legacy are the commission and the chief election commissioner (CEC) leaving behind? What are the lessons learnt from the past five years of this commission's activities? Assessment of the past is not only a matter of introspection, but can also help identify what impacts the past has on the future, and how it will shape future trajectories. This has become more important in 2022, considering that the nation's politics is standing at a critical juncture. The coming days will determine the trajectory of the nation's politics—particularly its governance.

Undoubtedly, CEC Nurul Huda and his colleagues will join eight other election commissioners of the past 50 years who were derelict in their constitutional duties to ensure a free election, which would have allowed the citizens to exercise their right to vote freely and fairly. But this EC also earned an unprecedented "honour," being asked to be investigated. Forty-two noted citizens asked the president to form a judicial council to investigate this commission's "serious financial corruption and gross election-related misconduct." Although the president didn't heed their call, this will remain a part of the history of the institution.

Under this EC, an array of local elections has taken place, but we will remember very few of them in the coming years—many will be consigned to forgotten history. Success in a few local elections does not determine the legacy of any EC. The Election Commission in Bangladesh is judged by how it has conducted the parliamentary election. What nobody will forget is the Jatiya Sangsad (national parliament) election held in December 2018. The events surrounding the 2018 election, the election itself and the role of the EC are well known. Perhaps the best description was provided by the international media, particularly The Economist, as it called the election a "transparently fraudulent" process.

One of the defining features of the 2018 election was the ballot stuffing the night before Election Day, which CEC Nurul Huda seemed to have acknowledged in 2019, saying the use of electronic voting machines (EVMs) can prevent stuffing ballot boxes. But now, years later, on his way out, he has either become a victim of selective amnesia or presumes that our collective memory is short-lived. He has questioned the veracity of it by saying he has not seen it and cannot be conclusive about it. Evidence abounds, yet that fact is not what drove the CEC in the past five years.

Notwithstanding the importance of the details of how a daytime election became a nocturnal exercise, we must understand that this reflected a larger issue. Ballot stuffing as a tactic of election manipulation is not new in Bangladesh and many other parts of the world; authoritarian regimes are adept in this regard, so are the hybrid regimes, which combine authoritarian and democratic traits. Hybrid regimes are of two categories: competitive electoral authoritarianism, and hegemonic electoral authoritarianism. Both require elections of some kind, because elections are the key to their legitimation process. However, a major difference between these two categories is how the election is conducted. In competitive electoral authoritarianism, while the entire political process is highly repressive and the media are muzzled, the election does engender some form of uncertainty. Steven Levitsky and Lucan A Way, in a perceptive essay titled "The Rise of Competitive Authoritarianism" (2002), discussed the characteristics of these regimes and mentioned that in competitive authoritarian systems, "elections may generate considerable uncertainty." On the contrary, in hegemonic electoral authoritarianism elections, manipulation is institutionalised in a manner that competition is rendered useless and removes the uncertainty. The removal of uncertainty is achieved through various measures, including constitutional changes and electoral processes, but it requires the electoral commission to become a tool that works in unison with other state apparatuses in favour of the incumbent.

As such, it was not surprising to see what happened in Bangladesh in 2018. The election revealed how the law enforcement agencies, the ruling party and the local administration became one entity. This entire process was given legitimacy by the Election Commission—not by turning a blind eye or being a silent spectator due to a lack of power to stop it, but by being an active participant. The power vested on the commission under the existing laws was sufficient to stop this on the track, but the Nurul Huda commission deliberately decided to be a party to this endeavour.

One can argue that he was no different from his predecessor Kazi Rakibuddin Ahmed. The 2014 election conducted under the leadership of Kazi Rakibuddin Ahmed had similar characteristics. There is no denying that the 2014 election, held without the participation of the opposition and marred by large-scale irregularities, is also an example of the dereliction of constitutional duties. But the most important difference is the institutionalisation of a system of election which practically ensures a victory to the incumbent. Such institutionalisation is key to the survival of hegemonic electoral authoritarianism. (A study on elections in 262 authoritarian regimes between 1946 and 2010 by Michael Bernhard, Amanda B Edgell, and Staffan I Lindberg, titled "Institutionalising electoral uncertainty and authoritarian regime survival," published in 2019, provides evidence in this regard.)

The EC of the past years has participated in the process of regime transformation from a competitive authoritarian system to a hegemonic electoral authoritarianism. Of course, the EC alone should not be credited for the transformation—instead a combination of political processes, a de facto one-party legislative body, and judiciary facilitated the process. But the EC's role was pivotal to the process. This was done through shattering public confidence in the electoral process, consequently hollowing out the electoral system altogether. The low voter turnout in subsequent elections demonstrated this phenomenon, while the EC cheerfully claimed that the elections were successful. This will remain the legacy of the Nurul Huda-led Election Commission, because it has shaped the subsequent behaviour of the incumbent and paved the future trajectory of the nation.

The second legacy of the EC is the introduction of EVMs in elections. This technology was touted by the EC before the parliamentary election in 2018 as a marker of progress and a tool to prevent vote-rigging. It was pushed back by various political parties in 2018, but gradually it has been introduced. The EVM technology has been a matter of concern in many countries, and many have abandoned the technology (Ali Riaz, "A Pointless Debate," The Daily Star, September 2, 2018). Additionally, the technology adopted by the EC does not have the Voter-Verifiable Paper Audit Trail (VVPAT) system. As these machines are likely to continue to be used in future elections, the suspicions and controversy will only become louder. There are allegations that these machines are manipulable, and an absence of a paper trail means there is no way to challenge the accuracy of counting. Programming of the EVMs can be manipulated to skew the results in favour of a candidate.

The third legacy of the EC can also be described as an unintended consequence. The behaviour of the Nurul Huda commission has proven that an election commission appointed by a partisan government cannot hold a free and fair election under the same regime. It was proven in the 2014 election, but now it has become the incontrovertible truth. Those who expected after the 2014 election that a change in personnel in the EC would chart a different course acknowledge this—at times begrudgingly. The CEC and his colleagues evidently didn't want to send the message, but their actions have made the message loud and clear. It is neither the laws that guide the EC, nor who is at the helm, but the nature of the government at the time of election that decides whether the EC will be an effective institution or not. As the new EC appointment is now in process, this lesson is well to bear in mind. The incumbent government seems to have learnt the lesson well and is acting accordingly. The question is whether the opposition parties have also learnt it. If so, what will they do?

Ali Riaz is a distinguished professor of political science at Illinois State University in the US, and a non-resident senior fellow of the Atlantic Council.