Abusing the electoral process

A Commissioner of a division recalls such an incident way back in the 1986 elections in one of the centres of Sirajganj district. The incident was telephonically communicated to the Commissioner by the Deputy Commissioner (DC) and the Returning Officer (RO). One person armed with a revolver, and with others behind him, entered a polling station and wanted to stamp all the blank ballot papers. The Presiding Officer (PO) responsible for conducting the ballot protested. The person hit him on the head with his revolver and got the job done. He was later arrested. His supporters in no time organised a huge procession demanding his release. The DC sought the advice of the Commissioner, as he was also under tremendous pressure from above to release the offender immediately.

The Commissioner advised the DC to go by the book i.e. to detain the offender on relevant sections of law. The pressure mounted to the extent that the Deputy Inspector General (DIG) of police also got frantic calls from the powers that were in those days. He personally visited the Commissioner's office explaining that perhaps the matter could be 'managed' locally by the DC and the Superintendent of Police (SP) without their being advised from the divisional headquarters. The Commissioner disagreed, but as reported later by the DC, the offender was released on bail since the pressures from the topmost people in Dhaka was such that the DC could no longer resist. What happened to the criminal case is anybody's guess.

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The current situation

Many would claim that since 1986, when the country was under martial law, the situation has improved. Such a claim may be true to a great extent, but by no means is the whole truth. Allegations of rigging of votes still persist. Much of the improvement claimed is largely due to a vigilant media as well as independent observers to monitor elections. These observers are drawn from election monitoring organizations and other civil society organisations having an interest in good governance. The Election Commission also takes steps to classify polling stations as very dangerous or dangerous and advises the law enforcing agencies to make appropriate deployment of their personnel. The army is also deployed.

The aforesaid steps doubtless serve to act as a deterrent to any outbreak of violence and may also encourage voters to exercise their right to vote. However, the extent to which these steps act as a deterrent to the casting of false or bogus votes or create conditions for free and fair polls remains to be assessed, more so in view of persistent complaints of such unholy practices.

Duty of the candidates

Under the Representation of the People Order, 1972, as amended, the contesting candidate or his election may appoint two polling agents for each polling station with one booth, and five such agents for a polling station with more than one booth. If the contesting candidates so decides, he is required to notify this in writing to the PO.

The above element in the election process is intended to allow the candidate, through his agents, the opportunity to observe the whole process of voting from inside the polling station or its booths. However, the law also provides that absence of polling agents will not invalidate any act or thing done in respect of voting. There is very little research other than anecdotal evidence as to whether or not the presence of polling agents serves to prevent false or bogus voting. On the contrary, their absence may make it easier for interested persons to indulge in false voting.

Who should prevent such acts?

Under the laws relating to elections and the rules framed thereunder, the PO is the master of ceremony responsible for ensuring that only genuine voters are allowed to cast votes. He is not alone in this game. He is assisted by other polling personnel on duty including the polling agents, representing the contesting candidates.

The PO is vested with the authority to stop polls if at any time the poll is interrupted or obstructed for reasons beyond his control. He can also do so if any ballot paper is unlawfully taken out of his custody or otherwise destroyed, lost, damaged, or tampered wit,h to the extent that the result of the poll cannot be ascertained. Under the relevant law, the PO is also vested with the authority to maintain order at the polling station. He may remove or cause to be removed any person who misconducts himself at the polling station or fails to obey any lawful order of the PO. If any such person is removed, he is debarred from entering the polling station during the hours of polling. The person, if accused of an offence in a polling station, is liable to be arrested without any warrant by a police officer.

Offences and penalties

The Representation of the People Order provides a long list of election related offences and the penalties for such offences. Of particular relevance are the offences of personation and inducement or undue influence.

A person is guilty of personation, if he votes, or applies for a ballot paper for voting, as some other persons whether that person is living or dead or fictitious. The offence of undue influence involves such elements as inducements, threat including use of force, violence, abduction, duress or any fraudulent device or contrivance. An interesting ingredient of the offences relates also to calling down or threatening to call down divine displeasure or the displeasure of any Saint or Pir in order to induce a person to refrain from voting.

Penalties

Initially, the penalties extended to imprisonment for a term not exceeding two years or with fines of Tk 1000 or with both. The law was amended in January 1991 to provide for heavier punishment than was earlier contemplated. The amended penalty provides for rigorous imprisonment for a term not exceeding seven years with a minimum of two years and also with fine.

Statistics relating to offences and penalties

Statistics relating to election offences, trial and penalties are very hard to come by. It has been learnt that no systematic data, let alone follow up, is maintained by any agency public or private. However, the news media, in particular the print media, do provide cases of offences, but there is hardly any follow up.

Examples from Munshiganj by-poll

In the recently held Munshiganj by-poll, the media exposed cases of both bogus voting and preventing voters from casting their votes. Kamala Devi was left out of franchise. The police are said to have detained a school teacher to scare away minority voters. In the case of Kamala Devi, a polling agent claimed that her voting was rigged. In the other case of scaring minority voters, a popular teacher called Sunil Sarker was detained by the police, which scared some 2,000 minority voters, who elected not to vote. It was also reported that the said teacher was a supporter of the Awami League. Finally, it was also reported that hoodlums forced the polling agents of Bikalpa Dhara (BD) candidate out of the polling station.

Other instances of election offences were also reported in the news media. It was alleged by the BD candidate that the armed cadres of the ruling BNP occupied 14 voting centres and cast 'proxy' votes to get its own candidate elected. This allegation was, however, denied by the Assistant Returning Officer (ARO). One PO said that the BD candidate did not send any polling agent. A tailor was reportedly arrested for his attempt to personate his brother Jalil Hossain.

The ghost of bogus votes still haunts the electoral process. It is true that conclusion on this cannot be drawn from the single instance of one Kamala Devi. It is contended, however, that this is just an example. There could be many more. Worse still, the abominable practice of capturing vote centres or otherwise scaring off genuine voters is still there. The legal provisions, as described earlier, are pretty stiff in terms of penalty. Yet political activists go on violating the law with impunity. In the case of Sunil Sarker, neither the RO nor the Election Commission has come out with any statement so far. If such unlawful acts are not prevented, free and fair polls will be something devoutly to be wished for, but unlikely to be achieved. There is an urgent need for more investigative research on election offences.

Examples from Dhaka-10 by-poll

The legal battle over allocation of symbol in Dhaka-10 by-poll provides the opposite case of abuse by Election Commission itself. The strictures given by the High Court in its verdict on the case is enough indication of external pressures on the RO and the Election Commission that led them to get entangled in the legal battle. Election Commission evidently could not live upto its constitutional mandate of ensuring free and fair polls which will now be held on July 1..

Lessons learnt

It is possible to deduce some lessons from Munshiganj by-poll. First, the legal provision relating to election offences are not strictly enforced. Second, Kamala Devi could have submitted a protest in writing for which she was not made aware of her rights as a voter. Third, if the detention of Sunil Sarker is true, there is reason to believe that the law-enforcing agencies may at times collude with the powers that be to influence election results. Fourth, POs may not know their authority to prevent rigging, or are otherwise unwilling to get involved in any such act for fear of subsequent reprisals from the powers that be. Fifth, there is an acute need for a more proactive role from the Election Commission in terms of follow up of election offences. Sixth, in case of the Dhaka-10 by-poll, there is need for Election Commission to show evidence of its neutral and impartial conduct to win the confidence of the people and the contesting candidates.

A M M Shawkat Ali is a former Secretary, Ministry of Agriculture.