The High Court directive and the voters' right to know
High Court judgment
Fortunately in May 2005, the Bangladesh High Court, in a historic judgment (Abdul Momen Chowdhury and others vs. Bangladesh), directed the Election Commission (EC) to collect from candidates in parliamentary elections, in the form of affidavits, the following information: (a) academic qualifications with certificates; (b) any criminal accusations at the present time; (c) any past record of criminal cases and the results; (d) candidate's profession/occupation; (e) source or sources of the candidate's income; (f) description of the role he/she played in fulfilling commitment to the people if the candidate was a parliament member before; (g) description of assets and liabilities of the candidate and his/her dependents; and (h) particulars and amounts of loans taken from banks and Financial Institutions personally, jointly or by dependents, or of loans taken by the Company from banks where the candidate is Chairman/Managing Director/Director. The EC was further directed to disseminate this information via the mass media, the purpose of which is to empower voters with information about candidates.
Courts gave strong arguments in favor of disclosures. Bangladesh High Court, in its historic judgment, stated that the "people have a right to know and such right is included in the right to franchise." The Indian judiciary went even further. The Indian Supreme Court, in Union of Inida vs. Association of Democratic Reforms (2002(95)SCC), viewed voters' right to know the antecedents of candidates as part of their fundamental right of expression. The Court stated: "Voter's (right to) speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be elected is a must. Voter's right to know antecedents including criminal past of his candidate contesting election for MP or MLA is much more fundamental and basic for survival of democracy. The little man may think over before making his choice of electing law-breakers as law-makers."
For all latest news, follow The Daily Star's Google News channel. According to Article 111 of Bangladesh Constitution, High Court judgment has the force of law. Article 112 of the Constitution makes it incumbent on all executive authorities to implement directives of the upper judiciary. Nevertheless, our EC has failed to fully and completely implement the High Court judgment on disclosures.
EC failure to implement judgment
The EC took the initiative to implement the High Court judgment in Sunamganj-3 by-election held on July 20, 2005. Unfortunately the Commission's initiative was half-hearted at best. For example, it issued a one-paragraph special circular on June 18 "requesting," rather than giving specific orders to, the DC of Sunamganj, who was the Returning Officer (RO) for the by-election, to implement the Court judgment. However, it failed to give the RO clear directives for the implementation.
After Sunamganj, by-elections were held in Faridpur, Dinajpur, Manikganj and Gaibandha during the past year. Elections to the reserve seats for women were also held during this period. The EC again failed to forcefully implement the High Court judgment. Consequently, the candidates submitted affidavits for the sake of doing so merely to meet the technical requirements. Yet, despite formal requests from Shujan, the EC failed to publish the affidavits, although, because of our pressure, the EC published a summary of the affidavits in each election.
A perusal of the published summaries shows that they contained many errors, omissions and misleading information. For example, one candidate in the Sunamganj by-election stated that his educational qualifications were not relevant. Similarly, many candidates in other elections showed that they did not have any cash or even bank accounts. They also concealed information regarding their assets and criminal records. Even though most candidates blatantly defied both the letters and spirit of the High Court judgment, the EC failed to take any action against them. We filed a writ petition seeking the Court's intervention to direct the EC to fully implement the Court directives, as a result of which rule nisi was issued against the dependents. However, because of the changes in the jurisdictions of the relevant bench, the hearing of the writ could not be held.
It may further be noted that in addition to the affidavits, under section 44AA of The Representation of People's Order, 1972, the candidates running in parliamentary elections are required to disclose within a week of the acceptance of their nomination papers information on their sources of election expenses, assets, liabilities, annual income and income tax returns. Unfortunately, despite repeated requests from Shujan, the EC refused to give us the disclosed information, defying the legal requirements to do so. The EC and the ROs even did not bother to respond to our formal requests.
The Indian experience
The Indian Election Commission faced a similar situation in 2002, and we can learn important lessons from their experiences. On May 2, 2002, the Supreme Court of India, in Union of India vs Association of Democratic Reforms and Another (2002(5)SCC), directed the EC to get from each candidate seeking election to Parliament or state legislatures, as a necessary part of his/her nomination paper, the following information: (a) any convictions/ acquittals/discharges for any past criminal offences, and details of any punishments with imprisonment or fines; (b) details of any pending cases against the candidate for any offence, occurring prior to six months of filing the nomination, of which charge is framed or cognizance is taken by the court of law, and which is punishable with imprisonment for two years or more; (c) the assets (immovable, movable, bank balances etc.) of the candidate, of his/her spouse, and of dependents; (d) liabilities, if any, particularly any existing past dues of any public financial institutions or government dues; and (e) the educational qualifications of the candidate.
The Indian Election Commission did not have the rulemaking authority and it asked the Ministry of Law, Justice and Company Affairs to amend the nomination forms, which are part of The Conduct of Election Rules, 1961. The ministry refused to do so.
The EC then unilaterally issued on June 28, 2002 a 5-page order, the directive portion of which reads as: "(1) Every candidate at the time of filing his nomination paper for any election to the Council of States, House of the People, Legislative Assembly of a State or the Legislative Council of a State having such a council, shall furnish full and complete information in regard to all the five matters, specified by the Hon'ble Supreme Court ... in affidavit, the format whereof is annexed hereto ... (2) The said affidavit by each candidate shall be duly sworn before a Magistrate of the First Class or a Notary Public or a Commissioner of Oaths appointed by the High Court of the State concerned. (3) Non-furnishing of the affidavit by any candidate shall be considered to be a violation of the order of the Hon'ble Supreme Court and the nomination of the candidate concerned shall be liable to rejection by the returning officer at the time of scrutiny of nomination for such non-furnishing of the affidavit. (4) Furnishing of any wrong or incomplete information or suppression of any material information by any candidate in or from the said affidavit may also result in the rejection of his nomination paper where such wrong or incomplete information or suppression of material information is considered by the returning officer to be a defect of substantial character, apart from inviting penal consequences under the Indian Penal Code for furnishing wrong information to a public servant or suppression of material facts before him: Provided that only such information shall be considered to be wrong or incomplete or amounting to suppression of material information as is capable of easy verification by the returning officer by reference to documentary proof adduced before him in the summary inquiry conducted by him at the time of scrutiny of nominations under section 36(2) of the Representation of the People Act,1951, and only the information so verified shall be taken into account by him for further consideration of the question whether the same is a defect of substantial character. (5) The information so furnished by each candidate in the aforesaid affidavit shall be disseminated by the respective returning officers by displaying a copy of the affidavit on the notice board of his office and also by making the copies thereof available freely and liberally to all other candidates and the representatives of the print and electronic media. (6) If any rival candidate furnishes information to the contrary by means of a duly sworn affidavit, then such affidavit of the rival candidate shall also be disseminated along with the affidavit of the candidate concerned in the manner directed above." This order was later partly modified following the final Supreme Court judgment given in March 2003.
The EC posted the affidavits submitted by candidates on its website. More importantly, it strictly enforced its own order. For example, during the last Rajya Sabha election in Uttar Pradesh, the nomination papers of two upper-house Congress candidates were rejected for non-submission of affidavits, and the opposition BJP candidates were elected unopposed.
Conspiracy
Our Election Commission not only failed to fully and completely implement the Court directives, it also appears to be involved in a conspiracy against people's right to know. A few months ago, our Chief Election Commissioner (CEC) claimed that since the Court judgment contained no consequences for defiance, the judgment is directory rather than mandatory.
Many legal experts dismiss the CEC's claims. In their view, Court directives are directory only in the case of interpretation of laws. Even in interpreting statutes, Courts can hold that a judgment is mandatory for the concerned parties by specifically saying so or providing for adverse consequences for non-compliance. Otherwise the judgment is directory. All other Court judgments are considered to be mandatory whether or not any consequence is included in them. It is unfortunate that our CEC, who himself is a sitting judge of the Appellate Division and who is responsible for protecting the public's interests, would provide such a misinterpretation.
A more serious threat against the right to know the antecedents of candidates appears to be in the offing. According to press reports, the Appellate Division of the Bangladesh Supreme Court recently allowed a third party named Md. Abu Safa, who was not part of the original litigation, to appeal the High Court judgment. What is most disturbing is that the original petitioners or their lawyers were not informed of the hearing. Shockingly, the whole thing took place in absolute secrecy. It may be significant to note that despite our repeated efforts, the appellant could not be traced.
What must now be done?
After the Indian judgment on disclosures, Election Watch, composed of the most distinguished citizens of the country and many well known organizations, popped up all over the country. For example, Justice Venkatachalaiah, the retired Chief Justice of India and the former head of their Human Rights Commission, headed the Karnataka state Election Watch. These citizens groups, on the one hand, kept pressuring for more disclosures, and at the same time distributed among voters the information already disclosed by the candidates. They have also been trying to create public opinion to clean up the electoral system of India. The Indian EC worked closely with them and the Commission itself proposed a 22-point reform agenda. The media also came forward, as a result, 115 of the 14th Lok Sabha members are branded as "tainted MPs," and there are widespread public demands for their removal.
Not only the candidates in the last five by-elections failed to fully disclose the information required by the High Court and the EC failed to enforce the Court judgment, our citizen groups, except for Shujan, or the media also played no significant role to ensure people's right to know. The only significant exception was in the case of Faridpur by-election, where a front-page article in the daily Prothom Alo stated the Four-party Alliance candidate failed to disclose in his affidavit the criminal case against him. Consequently his nomination was withdrawn by the Alliance.
It is clear that we now face three challenges. First, successfully resist the unwarranted efforts to thwart the voters' right to know and require the candidates in the upcoming parliamentary elections to make full disclosures. Second, take appropriate initiatives from now on to disseminate the information to be disclosed by candidates. Third, pressure the political parties to develop a set of concrete and information-based criteria for selecting nominees.
In order to successfully meet these challenges, there must be serious public pressure on political parties. Concerned citizen groups must play a vocal role in this regard. The media can obviously make the biggest contributions in molding public opinion. They can not only speak up for the people's right to information, they themselves can also start collecting information from potential candidates as a public service initiative. Fortunately, the daily Prothom Alo has already started to collect information from them and we hope that the other media representatives will follow suit. In addition, the media can begin collecting information for possible investigative reporting later. Shujan has already started collection information, which we are planning to post them on the web (www.shujan.org).
Politicians are responsible for running the affairs of the country. But their reputation is now under severe cloud. However, in the national interest, it is imperative that their good name is restored. For this purpose, political parties must now come forward to specify a clear and transparent set of information-based criteria for selecting candidates for elections. Honesty, transparency, competence, experience, selflessness, patriotism, respect for opposing views and so on must be the basis of such criteria.