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Dhaka Tribune

Prerequisite to a free and fair election?

Our political parties must work together

Update : 09 Jul 2018, 10:45 AM

One of the prerequisites for a free and fair election, especially in a society such as ours, is the creation of a level playing field in the electoral arena. Ensuring equal footing for candidates to reach out to their prospective constituents is the primary responsibility of the Election Commission.

However, without the goodwill of the incumbent party in power, that is difficult to achieve. The concept of a level playing field forms a crucial theoretical component in political science -- and such is undoubtedly the demand of the people. 

And given the singular strength of the Awami League as the dominant political force in Bangladesh, it falls upon the current government to ensure an environment in which the Election Commission can direct a free, fair, and credible election.

Opposition parties and civil society organizations have called for the ruling party to dissolve parliament prior to the election period, in order to create this elusive level playing field. 

Does our constitution allow for such? Who is responsible for creating a level playing field? All are questions to which there are vague answers. 

Article 123 (3) of the Constitution stipulates the election time proceedings as follows: 

A general election of the members of Parliament shall be held

(i) In the case of a dissolution by reason of the expiration of its term, within the period of 90 days preceding such dissolution

(ii) In the case of a dissolution otherwise than by reason of such expiration, within 90 days after such dissolution

Provided that the persons elected at a general election under sub-clause (a) shall not assume office as members of Parliament except after the expiration of the term referred to therein.

Constitutional language is complicated and often open to interpretation. But according to legal scholars in Bangladesh, our constitution does in no way require for the Jatiyo Sangsad to be dissolved prior to parliamentary elections.

In essence, these polls should be held 90 days prior to the organic dissolution of parliament (which has a five-year term limit), as per Article 123 [3(a)]. However, this does not mean that parliament cannot be dissolved prior to the elections, as Article 123 [3(b)] leaves open that possibility. 

The president, at the advice of the prime minister, has the constitutional responsibility to dissolve parliament, and may do so earlier than the stipulated time frame.

Therefore, while the prerogative rests on Bangabhaban -- in reality, the call has to be made by the prime minister.

Parliaments are dissolved prior to election periods in many countries, if and when the incumbent party feels that an early election may bode well for the ruling party or if such is needed to seek the mandate of the population during a period of crisis -- recent elections called by British Prime Minister Theresa May following Brexit is an example of such. 

However, in the case of Bangladesh, we need to first ask the question as to why, rather than if, parliament should be dissolved.

In Bangladesh, MPs have a habit of partaking in local administrative issues -- ranging from the selection of OCs of police stations to Upazila-level decision-making. 

As such, during the election period, it is implausible to expect the local bureaucracy to tangibly or tacitly remain neutral in their treatment of and towards oppositional or non-MP candidates. This is the most important reason behind the call to dissolve parliament prior to the elections. 

There may be an argument about a constitutional vacancy in the advent of a dissolved parliament. Nevertheless, the prime minister has already introduced a system to ensure continuity in day-to-day governance prior to the elections -- what she terms as an election time government, comprising of a smaller cabinet. 

As the president has the authority to appoint the prime minister and the cabinet, it will fall on him to ask the incumbent government to carry on up until the end of the elections -- a system similar to that of Britain, where Queen Elizabeth II asks the elected prime minister to act as the head of a caretaker administration up until a new parliament is elected. 

Therefore, systems and laws are very much in place in Bangladesh which allow for the creation of a level playing field -- that too without amending or moving beyond the existing constitution. 

A contentious judgment of erstwhile Chief Justice Khairul Haque is referred to as the judicial directive to dismantle the caretaker system. Moving beyond this issue, Justice Haque also pointed out that, if needed, two general elections may be held under the old caretaker government provisions. 

Nevertheless, we have sidelined this advisement. Furthermore, Haque also stated that a caretaker government comprising of MPs may be formed prior to the election -- and wrote about the viability of dissolving parliament at an appropriate time (42 days according to his verdict) and the formulation of a smaller cabinet before the polls, to allow the executive branch to perform “routine” work until a new cabinet takes over. 

The appointments of such, and the dissolving of Parliament, can be done through the presidency. Therefore, as Khairul Haque wrote a verdict which criticized the old caretaker system that the BNP today demands a restoration of, he has also left advice as to how we can form a level playing field with the existing constitutional structure. 

At the end of the day, whatever the system is or whatever constitutional format we have the elections under, in the spirit of democracy -- and with respect to the aspirations of people having that elusive right to vote in a free, fair, inclusive, participatory, and credible election -- our political parties must come to the table to find a workable solution and ensure that our citizens can vote without distress and with choice. 

Given the volatile nature of our political environment and the reported systematic misuse of power through state institutions by those in power, the dissolution of parliament seems an imperative step to ensure the creation of a level playing field. 

The onus is on our prime minister to showcase her magnanimity and political prowess in relation to the future of her party and the country -- she is very much in charge, but she is also very much the one people are looking up to with patience and hope. 

Mir Aftabuddin Ahmed is a graduate of Economics and International Relations from the University of Toronto.

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