Is Election Commission a post box?

Election Commission is a constitutional body. Its composition, powers, functions, etc have been elaborately spelt out in Part VII of the constitution. There are nine articles in this part ranging between 118 to 126. So far the functions of the Election Commission is concerned article 119 of the Constitution says "The superintendence, direction and control of the preparation of the electoral rolls for election to the office of President and to Parliament and the conduct of such elections shall vest in the Election Commission which shall in accordance with the Constitution and any other law-(a) hold elections to the office of President; (b) hold elections of members of Parliament; (c) delimit the constituencies for the purpose of elections to Parliament; and prepare electoral rolls for the purpose of elections to the office of President or to Parliament."

The Constitution itself says it is the supreme law of the country and if any other law is inconsistent with the Constitution then that other law to the extent of the inconsistency shall be void.

Tap here to add The Daily Star as a trusted source

Article 124 of the Constitution gives enabling power to the Parliament to make law with respect to all matters relating to or in connection with elections to Parliament, including the delimitation of the constituencies, the preparation of the electoral rolls, the holding of elections, and all other matters necessary for securing the due constitution of Parliament.

Having regard to the provisions of aforesaid article the Parliament at different times enacted several legislations empowering Election Commission to discharge its responsibility effectively in the pursuit of holding free and fair elections. In this respect amongst other instance of article 91 of the Representation of the People Order, 1972 may be cited.

The said article says" Save as otherwise provided, the Commission may --

(a) stop the polls at any polling station at any stage of the election if it is convinced that it shall not be able to ensure the conduct of the election justly, fairly and in accordance with law due to malpractices including coercion, intimidation and pressures prevailing in the election;

(b) review an order passed by an officer under this Order or the rules, including rejection or acceptance of a ballot paper; and (c) issue such instructions and exercise such powers and make such consequential orders as may, in its opinion be necessary for ensuring that an election of any polling station is conducted impartially, justly and fairly, and in accordance with the provisions of this Orders and the rules."

For a general election of members of Parliament stage of the election starts with the appointment of Returning Officer as made by the Commission under article 7 of the Representation of the People Order and it ends with the publication of name of returned candidate in the official Gazette made by the Commission under article 39(4). A general election of members of Parliament is held within ninety days from the date of dissolution of Parliament.

Obviously a constituency is consisting of several polling stations. A careful study of article 91 reflects that the powers given to the Election Commission by the said article are sufficient enough for holding election of any polling station as well as constituency freely, fairly and properly. Not only that it has been also given authority by the said article to stop polls at any pooling station or constituency when there is intimidation, coercion, pressure, etc upon the voters for casting or not casting vote in favour of any contesting candidate.

It is not possible on the part of any particular enactment to address all the eventualities it would come across while applying it for achieving any goal and keeping that in view the legislators from time to time come out with legislation empowering enforcing agency to exercise inherent power. Inherent power is applied when either there is no specific provision or prohibition.

Although powers given to the Election Commission by article 91 is sufficient enough for conducting poll of any polling station or constituency as a whole freely, effectively and impartially but even then in addition to all powers elaborated in the said article the inherent powers given to the Election Commission by the said article envisage optimum power of the Election Commission for maintenance of fairness throughout the stage of election. In more clear way we can say that whatever power is necessary for holding election of any constituency freely and fairly the Election Commission enjoys that power under the cover of article 91.

Another important thing which is required to be mentioned here is that as soon as schedule of election is declared by the Election Commission all the persons involved by the Commission towards conducting the election are called election officers and all of them are treated as being appointed on deputation to the Commission till the process of election is completed. During this period if any official either disregards the order of the Commission or refuses to carry out its order then the Commission as per provision laid down in Election Officers (Special Provision) Act, 1991 can suspend the delinquent official for a period of two months and can also direct appointing authority of the delinquent official either to remove or dismiss him from service.

The aforesaid power is a sort of safeguard given to the Commission for ensuring fairness of the persons involved in conducting the election. Thus it is evident that the Commission has ample power to obtain desired fairness from the persons involved in conducting the election.

A returned candidate in general election of members of Parliament does not become M.P (Member of Parliament) unless a gazette notification is made by the Election Commission under article 39(4) of the Representation of the People Order, 1972 declaring him as an elected candidate as against a constituency for securing highest number of votes amongst all contesting candidates. During the entire process of election if any complaint is received by the Election Commission, either from an aggrieved candidate or from any other person having interests in the election or from any public officer designated as election officer, with regard to fairness of any constituency then subject to inquiry the Election Commission has got substantive power as given to it by article 91 of the Representation of the People Order to stop publication of the gazette notification.

Even the Election Commission on suo moto on the basis of any news item published in any national daily alleging irregularity or malpractice in the election can stop publication of the gazette notification until the alleged accusation is enquired into.

But in the past it has been seen that since emergence of Bangladesh no Chief Election Commissioner in the long more than 34 years history of the Election Commission ever excised this power to the relief of any aggrieved candidate rather some of the Chief Election Commissioners used article 39(4) as a tool of bargain for personal gain and benefit.

The mere noble intention of the persons constituting the Commission to properly exercise the powers given to them both by Constitution and certain other electoral enactments may constitute grounds for attaining trust and confidence of the people on their ability of holding a free and fair election and on the contrary sweeping and irrelevant remark by any member of the Commission may give rise to the occasion of losing public trust and confidence. Thus it is expected that the persons constituting the Commission should behave in such way so as to guard themselves from lacking public trust and confidence.

The foregoing discussion lay the basis to say that if the persons by whom the Election Commission is constituted are characterised with high sence of honesty, integrity, morality and ethics so as to enable each eligible voter to exercise his/her right of franchise freely then the Election Commission definitely is not a post box but it is a post box if the persons constituting the Commission surrender their authority to the satisfaction of the regime by which they were appointed.

Ikteder Ahmed is a Faculty Member, School of Law, BRAC University.