Caretaker government and Election Commission

Retired Chief Justices were considered as most dependable persons by our policy makers to head a transitional government during the time of election. To this effect, an amendment to the constitution was made introducing a system of caretaker government in 1996. Two elections were held under two caretaker governments and now the politicians have again started floundering to find an answer to the question raised by different politicians as to the neutrality of a former Chief Justice and future Chief Adviser. 'A person acceptable to everyone' has been proposed by a major political party as a solution, without any reference as to who will be included or excluded in 'everyone'. Perhaps, 'everyone' refers only to the major political parties.

To reach a consensus on an acceptable person may become a futile exercise unless a system is devised. Only a system acceptable to everyone may help us finding an acceptable person. However, now-a-days finding a person of trust seems to dominate the concern, rather than formulating a system acceptable to everyone. Whether the person is capable of conducting a general election or not, does not seem to bother anybody. Does it mean that anybody can run an election if the person is trustworthy? We believe not. Some sort of competency is required to run an election.

General perception is that former chief justices are unquestionably competent to run an election. However, it tends to precipitate contradiction when a system of retirement was introduced with a general assessment that a person becomes constitutionally incapable of running the post of the Chief Justice or a Justice after certain age, while we seem to approve the fact that he/she remains or becomes capable of doing a more complicated job, i.e. conducting a general election, which he never has done. How can we argue for such a contention? Of course, health wise some of the retired judges may remain capable of continuing their job but this is not the case in general. If we believe that they remain capable of doing more complicated jobs, then there is no point in compelling these resourceful persons to retire while we need experienced people to lead the judiciary.

According to the 14th amendment of the constitution, the Chairman of the Public Service Commission and the Auditor General become constitutionally incapable at the age of sixty-five, while the judges of the Supreme Court remain constitutionally capable until the age of sixty-seven. There must be some rationale for determining the retirement age of judges. Based on such rationale, one may find it difficult to justify why a retired judge should be given the task of running the caretaker government and do a complicated task like conducting a general election. Moreover, according to article 58C(7)(d) of the Constitution, a person becomes ineligible to be an adviser or chief adviser of the caretaker government if he/she is over seventy-two years of age. This means that if no judge of the Appellate Division retires for five consecutive years after a general election, then we may not find a retired chief justice or justice who falls within the age range of sixty-seven to seventy-two years to fill the post of the chief adviser. Why should we keep a flaw in our constitution?

We have to first ascertain what we want actually from the head of the caretaker government,. We certainly want a free, fair, transparent and credible election. In order to fulfil our wish we need someone with some sort of professional exposure to lead our country during the time of election and that someone should have manifested during his/her professional carrier certain degree of neutrality, competency and capability to deal with people. If our choice becomes limited only to the Judiciary because of their experience in neutral professional role, then we should pick someone from the sitting judges, i.e. the Chief Justice or any of the Justices, as they are not perceived to be constitutionally incapable of continuing their jobs competently because of their age. And after completing his/her task, i.e. the election, he/she should return to his/her own position. In early 1990s, this happened when Justice Shahabuddin became the caretaker President and returned to his former post after handing over the power to the elected government.

Heading the caretaker government, therefore, should become the role of an independent judiciary. In a nutshell, the sitting Chief Justice should become the President and the senior most Appellate Division Judge should become the Chief Adviser of the caretaker government. This may also help us more to conduct a fair, transparent and credible general election. The judiciary may help us guide to create an independent and competent Election Commission.

The question of bringing a caretaker President has arisen because of some of the controversial amendments of the constitution which were made giving some extra-ordinary power to the President during the time of a transitional caretaker government. The President is normally nominated and elected by the parliament members of a particular political party and therefore, giving him/her some extraordinary power at the time of caretaker government may jeopardise its neutrality. Hence, to ensure neutrality of the caretaker government, we may have to either appoint a neutral President or strip the partisan elected President of some of the specially vested executive power i.e. not obligated to act according to the advise of the Chief Adviser (article 58E of the constitution), to declare emergency without the prior counter-signature of the Chief Adviser (article 58E read with article 141A(1) of the constitution), to administer the regulatory law related to the command of the defense services (article 61 of the constitution), etc. Moreover, according to the article 120 of the constitution, the President is responsible for making staff available to the Election Commission during the time of election. Hence, if a partisan President continues in his post during the time of election, he/she may try to manipulate staffing in the Election Commission, thus affecting its efficacy.

An independent Election Commission is a must for ensuring a free, fair, transparent and credible election. The constitution of Bangladesh guarantees that 'the Election Commission shall be independent in exercising its functions', but it leaves loopholes to make it dependent on the Executive Branch. The constitution does not provide any retirement age for election commissioners or their chief, but it states that they can be appointed for five years only. The post of the chief is non-renewable, while the other election commissioners can be appointed as the chief election commissioner on the wish of the government. These provisions should be amended, as one of these provisions leaves room for the party in power to maneuver the activities of election commissioners who wish to be the chief upon completion of their term. Once appointed, election commissioners and their chief should be able to work until a pre-determined retirement age. There should also be selection criteria for election commissioner. Consensus on acceptability of a person loses its relevance if the person appears to be incompetent to run an election.

Inadequate financial allocation also works as an impediment to the running of an independent Election Commission. In 2004-05 financial-year, the government has reduced the budget of Election Commission by about one-fourth of what it allocated in the previous year. No one knows why such drastic reduction was made. Is it to make the election commission less prepared for the coming election and more dependent on the government (for staffing)? Uncertainty about the continuity of election commissioners on their job affect their enthusiasm in planning for the future election. As a result, we do not see a proactive election commissioner who is raising voice for inadequate fund or staffing.

While it appears that the political parties are concerned about appointing a head of the caretaker government and a chief election commissioner, the general people are much more concerned about having a free, fair and transparent election. Some of the concerns are:

Rigging of votes is planned at the time of voters registration. It happens when the political party in power starts registering voters prior to an imminent election. The agents of the election commission, who visit door to door to register voters, are usually temporary staff who work under the influence of party in power. It is alleged that they deliberately contribute in misspelling or changing a part of the name, father's name and age of a large number, if not majority, of voters in the official registration record. The voter's name, father's name and age, which are asked by all polling officers or agents for identification, are also subsequently changed in the voters list! As a result, a large number of the voters discover a couple of days prior to the election that their particulars are wrongly recorded and they need to contact a political party to know what is their name or father's name in the voters list. In order to avoid harassment at the polling booth during voting, they identify themselves keeping consistency with the wrong record. The political party or parties keep track of those, with misspelled or partially changed name, who have not contacted them and arrange fake voters to vote for them. In case they appear for voting, the authenticity of their identities are challenged on the ground that the record shows different name, father's name or age.

It is also very difficult to know well in advance whether a mistake has been made in the voters list, as at the time of registration the agent of the election commission only completes the part of the registration form which is returned to the voter (this happened prior to 1996 election), keeping the other official part blank. They refuse to complete other part of the form in front of the voter. Thus, there is no scope to know, even for those who know how to read and write, how the voters' particulars are recorded prior to publication of the voters list. Again, if these targeted voters belong to a marginalised group, the political hoodlums intimidate them to refrain from coming to the vote centre.

This can only be resolved by forming an independent, adequately staffed and financially sound election commission, which can issue identity documents to each voter without the help of Executive Branch of the government.

(2) Voters do not feel safe to go to the polling centre independently. Because of uncertain security situation, voters become susceptible to physical attack from the hoodlums of different political parties if they do not accept logistical assistance from a party for coming to the polling centre. By taking help from a political party they somehow become obligated to vote for them. This happens, particularly, to the marginalised group living in rural area. Normally, the security is ensured around the polling centres where the national and international observers usually visit. The election commission or the government does not do anything about ensuring accessibility of voters to the polling centres or their safety on the way to the polling centres. To resolve this, the election commission should take initiative of providing public transport to the voters, especially in places where the polling centre is far or the voters need to cross a river. Such an initiative would also help reduce the election expenses for the candidates.

(3) Counting of ballots and subsequent finalisation of results does not seem to be transparent. Ballots are supposed to be counted in front of the polling agents and the presiding officers of the polling centres are supposed to authenticate the result sheet after taking counter signature of relevant polling agents of the political parties. But in reality this procedure is not followed strictly, rather the polling agents are kept in darkness when the final sheets are sent to the election commission. The election commission suddenly becomes very independent after receiving result sheets from different polling centres and the officers of the commission would not let anybody look at what they are looking at sitting on a podium and based on what they are finalising results. This raises question about procedural transparency of the process.

There are many more concerns that can be included in the list. However, I would stop elaborating on it with an expectation that many more voters like me would come up with their thoughts and concerns.

Muhammad Mohi-us Sunnah is a former UN official.