***The EC and the government know well what they should do, and what they should not, for holding the upcoming polls in a free and fair manner.***
The root of the present crisis over the parliamentary polls lies in the Supreme Court's verdict on the 13th constitutional amendment case which declared the election-time non-
partisan caretaker government system unconstitutional. And the solution to the crisis, to a large extent also lies in the SC verdict.
Banking on the judgement, the Awami League-led government abolished the caretaker government system in 2011 by amending the constitution, generating a political crisis that resulted in the boycott of the 2014 parliamentary election by the BNP-led alliance and some other parties. The opposition alliance has since demanded restoration of the election-time non-partisan government.
The 2011 constitutional amendment also introduced the provision for holding parliamentary polls without dissolving the parliament.
The crisis has deepened in the last seven years, and sparked renewed concerns in the run-up to the upcoming parliamentary election. The latiya Oikyafront, the alliance of BNP and some other opposition parties, is demanding the formation of a neutral election-time government and dissolution of the current parliament before the polls now scheduled for
December 23.
The SC verdict on the 13th constitutional amendment case was thrust back into the limelight after Prime Minister Sheikh Hasina, at a cabinet meeting on November 6, made a reference to it during an unscheduled discussion, while instructing four technocrat ministers of the cabinet to resign. "According to an apex court observation, there is no scope for inclusion of unelected individuals in the election-time cabinet,” she was quoted by a senior minister as saying. (The Daily Star, November 7)
Clearly, the PM meant to honour the observation made by the SC in the 13th
amendment case verdict. However, her decision triggered speculations that she took the move to prevent Jatiya Oikyafront from raising a demand for inducting some of its leaders in her election-time cabinet as technocrat ministers.
Other observations of the SC verdict are, however, significant in the context of the present situation. One of the observations of the apex court deals with the dissolution of parliament before the general election. It says it is justified to dissolve the parliament within a reasonable time-frame before the general election, such as 42 days.
If the government honours this particular observation, the current parliament should be dissolved in a couple of days. The election will be held
after 43 days as the Election Commission announced the schedule for the polls on Thursday, fixing December 23 as the polling day.
If the current parliament is dissolved, one of the major contentious issues in the current political crisis will be resolved. One of the major demands of the Oikyafront and some other opposition parties is dissolution of the current parliament before the polls for the sake of creating a level playing field for all parties.
In its observations, the SC also speaks for downsizing the cabinet before the polls, which will only carry out normal activities during election time. The SC
also speaks about empowering the EC to have control over all government officials directly or indirectly involved with the process of holding the polls. This power will take effect after the announcement of the election schedule.
The SC also speaks for empowering the EC to take punitive actions against officials engaged in election duties for their failure to perform neutrally. Actually, the EC does not have such authority to take penal action. If any official engaged in election duties violates the EC's order or neglect his or her duty, only their appointing authority, meaning the government's concerned department, can take penal action against him/her. What the EC can do is make recommendations for action against the involved official to his/her
appointing authority.
In the verdict, the apex court strongly and repeatedly urged that the EC should be strengthened so that it can hold a free and fair election. However, the reality is quite different. Before the 2014 parliamentary election, the government rejected the EC's proposal for empowering it to punish individuals and government officials for negligence in duties assigned by the commission or for their refusal to assist it.
The government also rejected another proposal from the EC that sought the power to monitor election expenses of the candidates during the electioneering period. The EC had sought the authority to devise its method of monitoring.
It should be noted that the word "election" has been cited at least 14 times in our constitution. Words may fall short to describe the importance of a free and fair election in a democracy. The Indian Supreme Court in several verdicts strongly pronounced that "If there is no free and fair periodical election, it is the end of democracy."
Our Supreme Court, in the caretaker government case verdict, also observed that like democracy, free and fair election is also a basic structure of our constitution. Democracy and free and fair election are so inextricably linked that one cannot be separated from the other. Without free and fair election, democracy cannot be conceived of and practised in the true sense of the word, it stated.
It further says: "If there is no free and fair election, then the people shall be defrauded of their sovereign powers as envisaged in article 7 of the constitution. Free and fair election can be compared with the heart of a human body; if the heart fails, a man dies. So without free and fair election, democracy would automatically die."
Now, it all depends on the government whether it will fully honour the observations made by the Supreme Court in the caretaker government case verdict, which unequivocally speaks for holding a free and fair election. The EC and the government know well what they should do, and what they should not, for holding the upcoming polls in a free and fair manner.
Shakhawat Liton is Planning Editor, The Daily Star.