Constitutional Powers of Election Commission for Arranging a Free and Fair National Election in Bangladesh: Related provisions of the Constitution

BD LAW POST

15 Jun, 2022

Introduction:

“Every citizen of this country should be guaranteed that their vote matters, that their vote is counted, and that in the voting booth, their vote has a much weight as that of any CEO, any member of Congress, or any President.”

………..Barbara Levy Boxer (A former United States Senator)

An independent and strong election commission is regarded as the savior of democracy in the modern governance system. The primary responsibility of an election commission is to hold a free and fair election. But in Bangladesh the credibility and transparency of the election commission is questioned due to their roles played in the last few decades. In the article, it is intended to discuss about the constitutional powers of election commission for arranging a free and fair national election in Bangladesh in accordance with the Constitution and other applicable laws in this regard.

Constitution of Election Commission of Bangladesh: The Election commission of Bangladesh was established as per the mandate provided by article 118 of the Constitution of Bangladesh. Accordingly, the election commission consists of a chief election commissioner and not more than four election commissioners or such number as the president directs.

Appointment of the Chief Election Commissioner and Other Election Commissioners: The appointment of chief election commissioner and other election commissioners has to be conducted by the President. The terms of the office of any election commissioner shall be five years. (Article 118 of the Constitution of Bangladesh, 1972) In addition, the chief election commissioner and other commissioners shall be appointed by the president from the individuals recommended by the Search Committee constituted under “Appointment of the Chief Election Commissioner and Other Election Commissioners Act, 2022”. This Act stipulates that before appointing Chief Election Commissioner and Other Election Commissioners the search committee constituted under section 3 must recommend 2 (two) names for each post to the President. Beforehand, politicization of the appointment in such vital office of the Republic had been a big flaw in the election mechanism in Bangladesh. But this new law comes up with the mandate to address this vital issue. The newly appointed Chief Election Commissioner, Kazi Habibul Awal has been appointed according to the provisions of this Act.

Click on the topic to know more about the “Appointment of the Chief Election Commissioner and Other Election Commissioners Act, 2022”

For other stuff, the President shall make, on the request of the Election Commission, available to it staff necessary for the discharge of its functions (Article 120). Article 126 obliges all executive authorities to assist the Election Commission in the discharge of its functions.

Powers of Election Commission: The constitution vests the election commission all types of powers like the superintendence, direction and control of the preparation of the electoral rolls to conduct both of presidential and parliamentary elections (art. 119). Art 119 enlists the following functions of the Election Commission:

To hold elections to the office of President
To hold elections of members of Parliament
To delimit the constituencies for the purpose of elections to Parliament and
To prepare electoral rolls for the purpose of elections to the office of President and to Parliament.

Other related Issues associated with the functions of the Election Commission:

Single electoral role: Article 121 provides that "there shall be one electoral role for each constituency for the purpose of election to the parliament and no special electoral roll shall be prepared so as to classify electors according to religion, race caste or sex".

Qualifications for registration as voter (Article 122): The elections to Parliament shall be on the basis of adult franchise. A person shall be entitled to be enrolled as a voter in any single constituency, if he -

(a) is a citizen of Bangladesh;
(b) is at least eighteen years of age
(c) is declared by a competent court to be of unsound mind ;
(d) is or is deemed by law to be a resident of that constituency ; and
(e) has not been convicted of any offence under the Bangladesh Collaborators (Special Tribunals) Order, 1972.

Time for Holding Elections (article 123):

Election to the office of President (Clause 1 & 2): The election to the office of the president shall be held within the period of ninety to sixty days prior to the date of expiration of the term, if the vacancy in the office of President occurs by reason of the expiration of his term. But, if the term expires before the dissolution of the Parliament by members of which he was elected, the election to his office shall not be held until after the next general election of members of Parliament. In such cases, the election shall be held within thirty days after the first sitting of Parliament following such general election.

If the vacancy in the office of President occurs by reason of the death, resignation or removal of the President, an election to fill the vacancy shall be held within the period of ninety days after the occurrence of the vacancy.

General Election of the members of Parliament (Clause 3 & 4): If the Parliament is dissolved by reason of the expiration of its terms, a general election of the members of Parliament shall be held within the period of ninety days preceding such dissolution. But in case of a dissolution for other causes the election must be held within ninety days after such dissolution provided that the persons elected at a general election shall not assume office as members of Parliament except after the expiration of the term referred to therein.

An election to fill the seat of a member of Parliament which falls vacant otherwise than by reason of the dissolution of Parliament shall be held within ninety days of the occurrence of the vacancy.

Provided that in a case where, in the opinion of the Chief Election Commissioner, it is not possible, for reasons of an act of God, to hold such election within the period specified in this clause, such election shall be held within ninety days following next after the last day of such period.

Nature and extent of power of the Election Commission:

1. Independence of the Commission: According to article 118 of the constitution read with art. 4 of the Representation of the People’s Order, 1972, the Election Commission shall be independent in exercising their power for arranging a free, fair and impartial election. Article 118 of the Constitution provides:

“The Election Commission shall be independent in the exercise of its functions and subject only to this Constitution and any other law.”

2. Inherent Power of election Commission: As nothing is said in art 119 about the supervisory power of election commission and there is no scope to review the constitutionality of law made to restrain the hand of election commission, the Supreme Court of Bangladesh recognizes the Inherent power of election commission to hold a free and fair election. In Altaf Hossain v. Abul Kashem (45 DLR (AD) 53) the Appellate Division took the view that the inherent power is to be exercised to supplement the statutory rule with the sole purpose of ensuring free and fair elections. (Constitutional law of Bangladesh: Mahmudul Islam). But there is restriction to use the power as the court observed in a later case Abdul Quader Farazi v. Chief Election Commissioner, 50 DLR 636:

“This power is to be exercised with utmost restraint, for frequent use of it is likely to render other statutory functionaries ineffective. So, the general rule that when the election has been held peacefully and no report has been made about any disturbance or rigging by the Presiding Officer or the Returning Officer, then the Election Commission has no power to interfere, cannot be taken for universal application”

Again, the matter was further confirmed in 2000 by Noor Hossain v. Nazrul Islam case

3. Discretion of CEC: The chief election commissioner has the discretion to postpone the election, if he is of the opinion that it is not possible to hold the election within the specified period of ninety days for reasons of an act of God. (Proviso to article: 123)

4. No judicial interference is allowed for the matters in relation to the Election; Article 125 specifies that a court shall not pass any order or direction ad-interim or otherwise, in relation to an election for which schedule has been announced unless the Election Commission has given reasonable notice and an opportunity of being heard.

5. Besides, Parliament may make provision ‘with respect to all matters relating to or in connection with elections to Parliament, including the delimitation of constituencies, the preparation of electoral rolls, the holding of elections, and all other matters necessary for securing the due Constitution of Parliament.’ (Article 124

Challenges of Election Commission to hold a free and fair election:

Election under Government instead of non-party Government: After abolishing the non-party caretaker government by the 15th amendment to the Constitution of Bangladesh, now the election has to be held under elected government. But it is a crucial challenge for the Election Commission to hold impartial election while any ruling party shall try to manipulate election procedure because of the lack of the practice of the democratic political culture among the political parties in our country.
Three tiers of organs of Election Commission and its secretariat those are independent and separate from each other. And there is no defined relation among them. This lack of coordination between EC and its Secretariat has made the organization week.
Dependence on the government for financial issues can make the Election Commission confused in doing its jobs transparently and independently.
Defective election laws are also responsible for the want of free and fair election.
Introducing the Electronic Voting Machine (EVM) in the election process will confuse mass people whereas most of the people are unaware of the technology

Recommendations:

The inter-relationship between the EC and the EC Secretariat should be clearly defined.
The EC must be financially independent.
There should be separate allocations in the national budget for the EC.
The rules and laws relating to election and election commission must be updated.
The appropriate democratic political culture should be practiced by the political parties

Conclusions: Some positive initiatives have been taken to find out some way-outs of the problems remaining with the worthiness of existing election commission to hold a free and fair election. However, the enforcement of newly made law for appointing the chief election commissioner and other election commissioners along with proper application of other laws in respect of election can help the election commission carry out its business properly.

Click on the topic to read the note on the “Appointment of the Chief Election Commissioner and Other Election Commissioners Act, 2022”