The recent formation of a commission by the interim government to reform the Election Commission (EC) has sparked both hope and controversy.
Calls for reform reflect growing concerns over the EC’s impartiality and independence, especially following criticism of past election processes.
There are potential impacts of such reforms, concerning the Bangladesh Constitution, the Election Commission Act 2022, and other election laws.
Such legal changes could shape the EC's role in promoting fair elections.
Legal framework of the EC
Election Commission of Bangladesh is established under a robust legal framework, primarily laid out in the Constitution and supplemented by election-specific laws.
Articles 118 to 126 of the Constitution of Bangladesh govern the EC’s formation, powers, and responsibilities.
Article 118 specifically states that the EC shall be independent and function autonomously, while Article 119 outlines its mandate to conduct parliamentary elections and referendums.
This recent act regulates the appointment process, tenure, and dismissal of commissioners. It aims to enhance the transparency of commissioner appointments by introducing a selection committee.
Representation of the People Order (RPO), 1972: Defines electoral practices, campaign regulations, and voting procedures. Electoral Rolls Act, 2009: Governs the preparation and revision of voter lists.
Despite constitutional protections, the EC's operational independence has been questioned due to perceived political influence.
Criticism regarding the lack of transparency in appointments and decision-making calls for a more robust, merit-based selection process for commissioners.
Role of interim government in the reform process
While interim governments are typically expected to oversee elections rather than initiate structural reforms, Bangladesh's current political climate has intensified calls for EC reform.
The interim government’s involvement raises both legal and political questions.
Interim governments traditionally maintain a non-partisan stance. Implementing comprehensive reforms under a temporary administration could set a precedent, potentially creating tension over the perceived impartiality of these changes.
The Constitution does not explicitly empower an interim government to enact institutional reforms.
This power typically resides with the sitting parliament, which may raise questions about the legitimacy of the commission’s reforms unless broad political support and legal provisions are established.
The interim government’s ability to enact these changes could hinge on legislative support or, potentially, a national referendum as a show of public support for reform.
Key areas of reform for EC
EC’s effectiveness depends heavily on its autonomy, appointment processes, and regulatory powers.
The process of appointing election commissioners has often been a source of contention.
Under Article 118, the President appoints commissioners based on the recommendations of a committee, though the specifics of this process have faced criticism for perceived lack of transparency.
The Election Commission Act, 2022 provides for a committee comprising government and judicial representatives to recommend candidates.
However, some argue that this committee’s composition allows for political influence.
To avoid debate Establishing an independent selection body that includes representatives from the judiciary, civil society, and academia could provide greater impartiality in commissioner appointments, aligning with Article 118’s mandate for an independent EC.
Autonomy, both operational and financial, is critical for the EC’s effective functioning.
Article 119 empowers the EC to supervise elections, but practical independence may be limited by funding dependencies.
Current budget allocations are overseen by the government, which could limit the EC’s autonomy.
A reform could establish an independent funding mechanism, with funds directly allocated to the EC by parliament rather than through the executive branch.
Strengthening the EC’s ability to make independent decisions without political pressure would further fulfill its constitutional mandate under Articles 119 and 120.
This could include empowering the EC to independently recruit staff, conduct internal audits, and issue directives.
EC’s mandate under Article 119 allows it to control electoral procedures, but its regulatory scope remains limited.
It could gain greater authority to enforce election-related codes, including imposing penalties for campaign finance violations, misuse of government resources, and violations of voting rights.
Additionally, expanding the EC’s power under the RPO could help address emerging electoral challenges, such as voter intimidation and vote buying.
In response to the rising role of digital platforms in elections, reform could empower the EC to monitor social media campaigns, combat misinformation, and penalize violations of digital campaigning rules.
Legal and practical challenges of reform
Reforming the EC entails navigating several legal and political hurdles, particularly due to the need for constitutional amendments and broad political consensus.
Certain reforms, particularly those involving the structure and powers of the EC, would require amendments to the Constitution, particularly Articles 118 to 126.
Amending the Constitution requires a two-thirds majority in parliament, which may be difficult to achieve without strong bipartisan support.
The judiciary plays a critical role in ensuring reforms align with the Constitution.
Past judicial decisions have underscored the importance of maintaining a transparent and independent EC.
Any attempts to curtail the EC’s powers could face challenges in the Supreme Court, particularly under Article 102, which grants the judiciary the power of judicial review.
Achieving political consensus is essential for the legitimacy of reforms. Bangladesh’s political polarization makes consensus-building challenging but necessary for durable reform.
Regional comparisons and lessons for Bangladesh
Examples from South Asian neighbours illustrate effective practices that Bangladesh might adopt:
India’s Election Commission enjoys a high level of autonomy, owing to constitutional provisions and extensive powers to oversee campaign finance and adherence to electoral codes.
Sri Lanka’s EC reforms introduced independent oversight bodies, reducing political interference in EC appointments and operations.
Recommendations for effective reform
An independent reform commission comprising legal experts, election scholars, and civil society representatives could ensure balanced, informed reform proposals.
A time-bound mandate would keep the commission focused and mitigate the risk of political delays.
Engaging the public and political stakeholders through consultations and public hearings could enhance the legitimacy of reforms and encourage a more collaborative approach.
A phased implementation of reforms, starting with changes that enhance the EC’s budgetary and operational independence, could ease the transition and make further changes more acceptable.
The commission’s mandate to reform the Bangladesh Election Commission presents both promises and challenges.
Legal constraints, political complexities, and potential constitutional amendments underscore the need for an inclusive, transparent approach to reform.
However, by building consensus and respecting constitutional provisions, these reforms could establish a more autonomous, credible Election Commission, paving the way for fairer elections and a more stable democratic future.
