Reform commission's proposals must ensure fair election

To ensure free and fair elections, the Reform Commission has recommended reinstating the caretaker government system and the provision for a referendum. The Constitutional Reform Commission has also made similar recommendations. Recently, the possibility of the caretaker government system returning automatically has emerged following a High Court ruling. However, the system cannot be implemented until a review petition on the Appellate Division’s order that annulled the Thirteenth Amendment—through which the caretaker system was introduced—is resolved.

The provision for a referendum was not included in the original 1972 Constitution. It was incorporated through the Fifth Amendment during Ziaur Rahman's regime in 1979 but was later abolished in 1991 through another constitutional amendment. The caretaker government system and the referendum provision have been revived as the High Court annulled the Fifteenth Amendment made by the Awami League government.

The practice of forming a neutral interim or caretaker government began in 1990, but Justice Shahabuddin's caretaker government in 1990 had no constitutional basis. After the controversial February 1996 elections, Khaleda Zia's government formally introduced the caretaker government system through the Thirteenth Amendment. However, in 2011, the Supreme Court declared the system unconstitutional, labeling it undemocratic due to the absence of people's representation. The Awami League government incorporated this verdict into the Constitution through the Fifteenth Amendment.

Apart from Pakistan and Bangladesh, no other country in the world requires a caretaker government to conduct elections. In both countries, the desire to cling to power at any cost led to the downfall of Ayub Khan in 1969, as well as the fall of Hussein Muhammad Ershad, Khaleda Zia, and Sheikh Hasina through mass movements. All of them were labeled as 'dictators' following popular uprisings.

In Bangladesh, political parties do not trust each other; instead, they trust unelected advisers in caretaker governments. This reliance on unelected advisers to conduct elections reflects the incapacity of political leaders, though they fail to recognize this. In response to BNP’s demand for state reform under an elected government, one caretaker government adviser reportedly asked, "Why didn’t you do it in the past 53 years?"

In the 1991 elections held under Justice Shahabuddin Ahmed's caretaker government, the Awami League, which lost the election, alleged subtle rigging, and the BNP came to power. Interestingly, the Awami League, BNP, and Jamaat-e-Islami had jointly campaigned against the 'dictator' Ershad's regime, demanding a caretaker government. Yet, once in power, the BNP refused to hold elections under a caretaker government. Khaleda Zia introduced a new theory: “No one is neutral except the mad and the children.”

A mass movement against 'dictator' Khaleda Zia began, with the Awami League and Jamaat joining forces with the so-called 'dictator' and 'fascist' Ershad's Jatiya Party. What an irony! The same Ershad, whom the BNP had opposed as a dictator, now participated in the mass movement to oust the BNP from power.

Faced with public protest, Khaleda Zia incorporated the caretaker system into the Constitution and resigned. Under the caretaker government led by Justice Habibur Rahman, the Awami League won the election, while the BNP predictably alleged election fraud. In the 2001 election under Justice Latifur Rahman's caretaker government, the BNP's victory led the Awami League to allege massive rigging. The 2008 election under the military-backed caretaker government of Dr. Fakhruddin Ahmed was also rejected by the BNP. Yet, the demand for caretaker governments continued.

BNP, which fought for 15 years to establish the caretaker system, ironically damaged its credibility. To ensure a favorable Chief Adviser, the BNP amended the retirement age of Supreme Court judges. When they failed to appoint their preferred judge amid intense protests, the BNP made their party-affiliated President Iajuddin Ahmed the Chief Adviser, undermining the significance of the caretaker system.

Moreover, no election held under the caretaker system was ever accepted by the losing party, resulting in a parliament without opposition. The absence of opposition in the parliament turned the ruling party into an authoritarian and fascist force. Therefore, the recommendation by the Election System Reform Commission to restore the caretaker government is not necessarily a universally accepted solution for free, fair, and impartial elections.

The Election System Reform Commission has made a significant new proposal: if less than 40% of the votes are cast in any constituency, a re-election should be held in that constituency. However, it is unclear why the threshold was set at 40%; considering the principle of majority, it would be more reasonable to mandate a re-election if less than 51% of the votes are cast.

The Reform Commission has also recommended that the Election Commission be made accountable to a parliamentary committee led by the Deputy Speaker of the Upper House. While accountability is essential for every institution, it is crucial to consider whether such accountability could undermine the independence and impartiality of the Election Commission.

Another positive proposal is the abolition of student, teacher, and labor organizations affiliated with political parties, as well as foreign branches of political parties. However, it is puzzling why no recommendation was made to disband professional associations of lawyers, doctors, or journalists.

The recommendation to cancel a candidate's nomination if false information is provided in the affidavit is appropriate.
The Commission's report strongly criticizes the Awami League government for suppressing freedom of speech, particularly through the Digital Security Act. I read in the news that the interim government has finalized a draft of the Cyber Security Ordinance 2024, intending to replace the Digital Security Act.

However, this raises a question: if a candidate can lose their nomination or parliamentary membership for providing false information, why shouldn’t there be penalties under the digital law for spreading false information in the media?

Every government seems to require repressive laws; that is why no government has repealed the Special Powers Act of 1974.
The proposal for internal reforms within political parties is also essential. Every party has fought against autocratic rulers, yet none practice democracy within their own ranks, where the top leader's word is law, and the rest of the party members simply comply. The Reform Commission's suggestion that the central nomination board of the party should select a final candidate from a panel of three individuals elected by primary members in each constituency is appropriate. The Awami League had followed this process for national parliamentary elections but later abandoned it due to the influence of money even at the grassroots level.

The Commission has recommended banning banners, posters, arches, and billboards to curb the influence of money in elections, but political party ethics are left to determine other election-related expenses. However, if political parties had a proper ethical stance in elections, the practices of selling nominations, financial transactions at various committee levels, or the monopoly of wealthy businesspeople and elites over nominations would not have occurred. The implementation of the recommendation to bring election-related expenses under the banking system is not only impractical but unrealistic. If monitoring and surveillance of election spending at the grassroots level is implemented, it will open a new door to corruption.

The Commission has also recommended bringing to justice those involved in organizing the one-sided and rigged elections of 2014, 2018, and 2024, barring members convicted under the ICT Act from joining any political party, and excluding those involved in enforced disappearances, killings, and human rights violations from participating in elections. This is a good proposal, but it is not impartial. Were only these three elections one-sided and rigged? Ziaur Rahman's "Yes-No" vote, every election during Ershad's rule, the BNP's Magura by-election, and Khaleda Zia's February 1996 elections were also rigged and one-sided. The Reform Commission only holds the Awami League responsible for extrajudicial killings and false cases, but since the establishment of the Rapid Action Battalion (RAB) during BNP's rule in 2004, extrajudicial killings have been a persistent issue.

On the other hand, even under the current interim government, false cases are still being filed. Therefore, it is appropriate to consider all one-sided and rigged elections. Kidnapping and enforced disappearances are heinous crimes, and those involved must be brought to justice. However, no matter how brutal extrajudicial killings are, if they had not begun during the BNP's rule, the country would have seen a reign of terror by now.

The issue of political affiliation in various state institutions over the past 15 years is mentioned in the Reform Commission's report; however, political affiliation has existed even before this period, and it continues today. Now, there is an intense, undeclared competition for senior positions between the BNP and Jamaat. Due to political affiliation, hundreds of civil servants have been declared "On Special Duty" (OSD) during every government’s tenure. Therefore, Shafiq Rehman, in his weekly magazine Jayjaydin, had recommended appointing senior officials based on political affiliation, similar to the United States.

The Reform Commission's report holds the Awami League responsible for pressuring Chief Justice Surendra Kumar Sinha to resign, but it was Justice Sinha who had ruled in favor of abolishing the caretaker government system. Had he not supported the abolition, the system would not have been eliminated. According to the Reform Commission’s report, a person convicted by a judicial court or the International Crimes Tribunal would become ineligible to run for elections from the date of conviction; however, this recommendation is not reasonable. This is because the verdicts of lower courts are not final, and the current interim government has even freed death row convicts. The desire to prevent the dominance of majorities and misrule in elections, which the Chief Advisor aimed to address through reforms, is not clearly reflected in the Reform Commission's reports.

The Chief Advisor of the interim government, Dr. Muhammad Yunus, has a strong desire for Bangladesh to transform into a modern democratic state through reforms with the participation of all parties except the Awami League. However, this will not happen. Each political party has its own reform agenda, and those who come to power will reflect their ideals through their reforms, which is natural. Already, the BNP has announced that it will oppose any proposal by the Reform Commission that hinders free and fair elections. On the other hand, the consensus between BNP, Jamaat, and the interim government exists only in the context of destroying and prosecuting the Awami League. On other issues, their opposing positions could challenge the government's reform agenda.

Zeauddin Ahmed: Former Executive Director, Bangladesh Bank.