Election Laws
Election Laws The purpose of election laws include proper holding of elections, explaining the proper conduct expected from candidates and the people working on their behalf, and ensuring punishment to those who violate the legal provisions.
The provision for an election commission was kept in the constitution framed in 1972 after the emergence of Bangladesh. According to Article 118 of the Constitution, the President appoints the Chief Election Commissioner and other Election Commissioners. According to the Constitution and law, the Election Commission is independent in the discharge of its duties. According to Article 119 of the Constitution, the responsibility of supervision and preparation of voters’ list, the direction, control and conduct of elections lie with the Election Commission. Representation of the People Order 1972, The Conduct of Election Rules 1972, and the Code of Conduct 1996 have been framed for fixing the procedures to be followed and the measures to be undertaken by the Election Commission. The election laws comprise all these orders, rules and regulations.
Representation of the People Order, 1972 According to the provisions of article 3 of this Order, the Election Commission would determine its own procedures. According to Article 5, the Election Commission can direct any individual or authority to discharge responsibility or render assistance as per its requirement. If an official or a member of law enforcing agency involved in election duty obstructs fair and neutral election or does something to influence the result of the election, the Election Commission can relieve them from their election duty at any time and may direct the relevant higher authority to take disciplinary action against them.
According to article 7 of the Order, the Election Commission can appoint one Returning Officer and necessary numbers of Assistant Returning Officers for election of members of the jatiya sangsad (Parliament) in one or more than one constituencies. The Returning Officer is given responsibility to take necessary measures for conducting elections according to rules. The Assistant Returning Officers are also empowered to discharge the responsibility of a Returning Officer under his supervision. Article 9 speaks about constitution of a panel for appointing election officers. Article 11 empowers the Election Commission to issue notification to fix the dates for submission and scrutiny of nomination papers. Article 12(1) describes the qualifications required for contesting in the elections for membership of the Parliament.
Article 13 provides for submission of a fixed amount of security deposit by the candidate or his nominated representative. Article 14 empowers the Returning Officer to scrutinise the nomination papers. Article 14(5) provides scope for appeal to the Election Commission against rejection of nomination papers by the Returning Officer within the prescribed time; the verdict of the Election Commission is final on the matter. Article 15 provides for publication of list of validly nominated candidates. According to Articles 16(1) and 16(2), any validly nominated candidate can withdraw his candidature within the prescribed period through notice in writing signed by him.
Article 17(1) provides for cancellation of election in a relevant constituency due to the death of a candidate. Article 19 stipulates the conditions for getting elected uncontested. Article 20 provides for allocation of symbols according to the preferences of the candidates in a constituency. According to article 20(2), the Returning Officer has to exhibit prominently at each polling station the name and symbol of each contesting candidate. Articles 21(1) and 21(2) provide for appointment of election agent and polling agent respectively by the candidate. Article 27(2) provides for casting of votes by postal ballot by a person referred to in sub-section (2), (3) or (4) of section 8 of the Electoral Rolls Ordinance, 1982 or by a person appointed for performing election duty.
Article 37 provides for consolidation of the results in the prescribed manner, and article 37(5) provides for recounting of valid ballot papers. According to article 39(1), the Returning Officer has to declare the name of the elected candidate through a public notice.
According to subsection (1) of article 44(a), every contesting candidate shall submit to the Returning Officer, within seven days following the date of withdrawal, a statement in the prescribed form on the probable sources of fund to meet his election expenses. According to subsection (3) of Article 44(b), the limit of a candidate’s election expense has been fixed at taka 3 lakh. According to Article 44(c), every election agent of a contesting candidate shall, within fifteen days after the publication of the name of the returned candidate, submit to the Returning Officer a return of election expenses in the prescribed form. Article 49(1) provides for submission of an election petition by a contesting candidate regarding the validity of election.
Article 73 stipulates punishment for corrupt practices, and describes corrupt practices as contravention of Articles 44(a) and 44(b), accepting bribe, impersonation, exerting undue influence, creating hindrances, making or publishing false statement concerning the personal character of a candidate, or relating to the symbol of candidature, or regarding the withdrawal of candidature, calling upon or persuading any person to vote or to refrain from voting for any candidate on the ground that he belongs to a particular religion, community, race, caste, sect or tribe, knowingly, in order to support or oppose a candidate, lets, lends, employs, hires, borrows or uses any vehicle, and causes or attempts to cause any person waiting to vote at the polling station to depart without voting. Article 74 explains illegal practices, and stipulates maximum punishment of 7 and minimum 2 years in addition to fines for these offences. Article 78 bans convening, holding or attending any public meeting or procession within the area of any constituency during a period of forty-eight hours ending at midnight following the conclusion of the poll. If this provision is violated, maximum and minimum punishment of 7 and 2 years respectively along with fine can be imposed according to Article 78(2). Article 81(1) stipulates a maximum punishment of 10 years and a minimum of 3 years along with fine (cognizable offence) for ballot theft, false voting, breaking of seal, hindering holding of election, etc.
Article 84 stipulates that if an official or a member of law enforcing agency engaged in election duty works for or against a candidate, he can be punished with maximum 5 years and minimum 1 year imprisonment along with fine (cognizable offence). Article 86 stipulates that if a person misuses his official position in a manner calculated to influence the result of the election, he is punishable with imprisonment of maximum five years and minimum one year along with fine. According to article 91, the Election Commission may 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 malpractice, including coercion, intimidation and pressures prevailing at the election.
Article 91(b) stipulates that the Election Commission shall establish a committee to ensure the prevention and control of pre-poll irregularities, to be known as the Electoral Inquiry Committee. Composed of judicial officers, this committee would conduct inquiries before the holding of election, and make recommendations to the Election Commission.
Election Officials (Special Provision) Act, 1991 This Act was promulgated for discipline and control of election officials in order to ensure free, fair and neutral elections. The Election Officials (Special Provision) Ordinance, 1990 (Ordinance No. 31 of 1990) was repealed through this Act. Section 4 of this Act sets out the service conditions and regulation of election officials. Notable features of this Act are: If a person is appointed an election official, he can not express his inability to discharge his duty without grounds acceptable to the Election Commission or in some cases the Returning Officer. He would be considered as serving on deputation from the date of appointment till his release from election duty.
Section 5 of this Act provides for punishment of election officials on disciplinary grounds. If any election official intentionally fails to carry out any election-related order or directive of the Election Commission or the Returning Officer, as the case may be, or if he violates any legal provision related to election, that would be treated as misconduct, and that misconduct would be considered as a punishable offence according to service rules.
The Conduct of Election Rules, 1972 The government framed these rules in consultation with the Election Commission in exercise of the powers conferred by Article 94 of the Representation of the People Order, 1972. Section 5 of these rules provides scope for appeal against rejection of nomination paper by the Returning Officer. Section 6 describes the process of publication of the list of validly nominated candidates. Section 7 describes the process of declaration of the list of contesting candidates along with their symbols following the date of withdrawal. Section 8 describes the process of declaration of results of an uncontested election after scrutiny, and section 9 lists the prescribed symbols. Sections 10, 11, 12, 13, 14 and 15 describe the process of preparing ballot papers, issuance of postal ballot papers, recording of votes on postal ballot papers, assistance to illiterate or infirm electors, casting vote by postal ballot, reissue and return of postal ballot. Sections 15(a) describes the process of recording ballot boxes, 16 and 17 the marking of ballot papers, and 18 insertion of ballot papers. Sections 20, 21, 22, 23, 24 and 25 dwells on challenged votes, stray ballot papers, count on close of poll, statement of the count by the Presiding Officer, consolidation of results and return of election. Section 26 describes public inspection of documents.
The Code of Conduct, 1996 The Code of Conduct 1996 has been framed by the Election Commission as per powers conferred upon it by Section 91(b) of the Representation of the People Order 1972. According to section 3 of this Code, although overall development plan can be put forward by the concerned political parties, they are not allowed to pledge any toll or grant to any institution in the constituency, as well as the undertaking of any development project after the announcement of election schedule. Section 5 says: (i) Political parties and candidates will have equal rights in matters of election campaign. Nobody is allowed to spoil or obstruct the meeting, procession or any other publicity of a rival; (ii) No public meeting hindering the movement of the people can be held without the sanction of appropriate authority; (iii) After the declaration of the election schedule, no party or political party or anybody acting on their behalf can use government machinery, government officers or employees or government transport for election purpose, and would refrain from using state facilities; (iv) Posters used in election campaign should be black and white in locally produced paper, and its size can not be more than 22 x 18 under any circumstances; (v) All should refrain from writing on walls as part of the election campaign.
Section 6 stipulates that the election can not be influenced through money, arms, muscle or local power. Section 7 says that only the election officials, candidates, election agents and voters would be eligible to enter the polling centre. Only the polling agents would discharge their responsibility seating in the seats reserved for them. Section 8 says that any violation of these rules would be treated as pre-election irregularity, and any person or political party adversely affected by that irregularity can submit petition to the Electoral Inquiry Committee or the Election Commission seeking redress. If the petition appears substantive to the Election Commission, the Commission would send the petition to any Electoral Inquiry Committee for investigation. In both the cases, the Electoral Inquiry Committee would send recommendations to the Commission after carrying out investigation according to the provisions of Representation of the People Order 1972 (President’s Order No. 155 of 1972).
Since 2008, the Election Commission stared appointing its own personnel at bye elections and local elections.
In 2007, one of the main responsibilities of Huda Commission was to draft a transparent and acceptable voter list. In 2007-08, for the first time EC took a successful step for making a ‘Digital’ database. Through digital method voter list with photograph and national identity cased for each voter were completed in nearly eleven months. In 2008 voter list the members of voter was 8 crore 11 lakhs 33 thousand 448. In order to correct the voter list the international Foundation for Electoral Assistance (IFES) under the supervision of UNDP was assigned to in its report it was said that voter list was almost 99 percent correct.
The Election Commission ordinance declared in 2008 was approved by the parliament unaltered in 2009. In 2007-08, in light of consensus reached among parties, a new provision was added to RPO as amendment that a person may seek nomination having special three years as member to that party. As per initial recommendation five year as party membership was made compulsory.
At the recommendation of political parties, the provision for three years membership to the party renamed unchanged. The aim was to prevent nomination seekers from ‘nomination trade’ and sudden ‘nomination’ by using names. RPO-1972; Section 12(i)(j) this subsection was later announced in 2013 by the parliament. With the aim of resisting ‘nomination trade’ as per sub-subsection of section (iv) of political party registration, a new law was made to emphasize the grassroots opinion for getting nomination. It is nominated in this section that, the Union and Thana level party will prepare a panel consisting of three members and the will recommend to the center. Based on this recommendation the central parliamentary board will confirm the nomination.
The most discussed change was brought in People’s Representative Order-1972 was the provision for mandatory registration of political parties with Election Commission. The new changes also caused for promoting women leadership and for encouraging women in politics, it has been made mandatory that from the grassroots committee of political parties to the central committee 33 percent must be women.
Since 2009, The Election Commission started to think about the implementation of EVM. Finally, for the first time the trial use of EVM started on 17 June, 2010 at Jamal Khan Ward of Chittagong City Corporation. This was gradually introduced in local government election in Narayanganj, Comilla and Narsingdi. By using one time Programmable chip (OTP), its security was ensured.
The Election Commission for the first time had demarcated boundaries of the constituency. Thanks to this, the take of boundary demarcation was completed. After this, using the same management maps and all information of three hundred constituencies the government compiled published a book of 396 pages titled ‘Constituencies Maps of Bangladesh’. It was then sent to different institutions and all parliament members.
In 2013, by amending RPO, the armed forces are excluded from the definition of law enforcing agencies. As a result, the deployment of armed forces shall not be done under election law. [Aminur Rahman Sarkar]
