Election Commission for a democratic country is one of the most important organs of the state which direct the way the country will follow for its future democracy. Every democratic country has formed an election commission to be guided by it. But to make it effective and purposeful, the commission needs to be independent and free from the clutch of the government. There is no developed democracy where the election commission is weak and not independent. This is not the coincidence; rather an outcome of a planned and considerate activity of the state concerned. India, mulling over the importance of an independent election commission, has set an example of forming such an independent commission which is now playing a pivotal role to strengthen democracy of that country.
Our constitution is formed under Part VII of the constitution. Under article 118(4) of the constitution, the EC is independent in the exercise of its functions and subject only to the constitution and any other law. Therefore, it is clearly mentioned that the EC is fully free and independent from any other authority or body. But very logically it was made independent subject only of the constitution and any other law. And nowhere in the constitution, was its independence limited by any other provision of the constitution. Another part that to be considered to check the independence of the commission is any other law as referred in that article (118). So, the relevant laws made in this behalf need to be considered to assess whether or not or if yes to what extent the commission is independent.
It is a very general idea among the people that the independence of the EC may be measured by the role and attitude of the government towards the commission. The role of the government or the executive authority has two dimensions. Being the source of power or authority, the government needs to take some positive or affirmative measures to enable to commission to perform its obligations. Basically, no state organ is fully independent in any country. It has to depend on other organs of the state to discharge its functions. On the other hand, the government sometimes needs to abstain from taking some negative actions which may stand against the commission or frustrate the concept of an independent EC. The latter part is very often required in the developing democracies like Bangladesh.
Since independence, the EC has conducted more or less 10 general elections and some other elections of different categories. Those elections were held both under civil and military governments. The civilian governments include caretaker, interim and political government. A new system of government was introduced as a result of movement by the then opposition political parties in 1996 on the plea that a free, fair and impartial election is not possible under the political government. AL then raised the issue and subsequently, caretaker government was formed amending the constitution. Subsequently, a free and fair election was held under the caretaker government. However, the election held of 1991 was held under an interim government headed by Justice Shahabuddin Ahmed. That was not a caretaker government as per constitution. That election was held in a free and fair manner.
The purpose of the caretaker government is to hold a free and fair election which is also the purpose of the EC as well. No political parties created pressure upon the government or no government has taken any remarkable action to strengthen the EC. But unfortunately, without doing it, a new system of government was introduced in the constitution bypassing the EC. AL now has removed the provision of CG from the constitution which they have wrestled for. But we could not make the EC independent in nature because the behavior of the government or the political parties was not changed towards that state organ.
Plethoras of laws have been enacted covering the various areas of functions, capacity and powers and formation of the EC. Beside the constitution, the Representation of the People Order of 1972 is the most important piece of law that covers the basic and most areas of the commission.
But, law alone is not enough to make any state organ independent and effective. The role of the government and the political parties is the most important driving factor in this regard. For instance, any organ is dependent on the government or the executive authority for its financial capacity. Likewise, our EC is also dependent for its fund on the ministry of finance so far the fund of the EC is arranged from the consolidated fund. It is experienced that the commission does not get the timely and adequate fund from the government. This thwarts the capacity and demeans its independent nature.
The commission does not have its own secretariat. Neither can it make laws and provision for its own which any independent body should have. The existing EC secretariat is under the authority of the Prime Minister. The appointment, recruitment etc are guided by the rules of 1979. But the procedure and qualifications of the commissioners or the CEC are not illustrated in the rules or the constitution while the field officers are appointed by the public service commission under the ministry of establishment. Thus, an independent commission with all powers and authority is vital. However, a strong coordination between the EC and the executive is utmost important to enable the commission to fulfill its purpose.
Though under the constitution, all executive authorities are bound to assist the EC in discharge of its functions. But in practice, the executive authority of our country in most cases does not extend its assistance to the commission. The latest case of such type of noncooperation is non-deployment of army in the NCC poll. The excuse that was made by the prime minister in this regard was comical in nature. Though the election was held in free and fair manner, but it does not counteract the fact that the government has violated the constitution. This again established that our EC is not independent as laid down in the constitution. Such disobedience towards the constitutional provision will slow down pace democracy. A truly independent and effective EC is the call of time.
Ershadul Alam is a lawyer and researcher
