The Chief Election Commissioner (CEC) and other Commissioners are appointed by the President and enjoy security of tenure that is similar to a judge of the Supreme Court. The constitution expressly provides, among other things, that the EC shall be independent in the exercise of its functions and subject only to the constitution and any other law. The constitution also provides that as and when so requested by the EC, the President shall make available to it such number of staff as may be necessary for the discharge of its functions. On the face of it, this makes it mandatory for the President to accede to such requests from the EC. But what happens in practice?

Can the EC change the approved organogram without the concurrence of the Ministry of Finance (MOF) and the Ministry of Establishment (MOE) and increase the number of staff? The answer is in the negative. The EC has to go through the usual drill of changing the organogram or if a new post is to be created.

Again, the constitution also provides: "It shall be the duty of all executive authorities to assist the Election Commission in the discharge of its functions." Is this mandatory? The answer is, in part "yes" and in part "no." It is in the affirmative in so far as it relates to deployment of poll personnel. It is in the negative when requests by the EC to deploy army at the time of elections are turned down by the executive. The recent request of the EC to deploy army during municipal polls is a case in point. This tends to indicate that there are limits to the authority of the EC.

Financial autonomy
The EC enjoys financial autonomy in the sense that, like many other constitutional entities, its expenditure is charged upon the Consolidated Fund which is not subject to parliamentary approval. However, it is the MOF which determines the size of the budget. Of course, there are consultations with the EC, but such consultations apply to other entities whose expenditures require parliamentary approval.

Salary issue
No qualifications are prescribed for appointment to the post of CEC or Commissioner. In practice, CECs have either been judges of the High Court or senior bureaucrats, generally those on the verge of retirement, or who have retired. The age-old financial rule requires that a retired person has to draw a salary of the post minus pension.

The Comptroller and Auditor General (CAG) asked the present CEC and his other Commissioners to refund the sum which they had drawn in excess of pay minus pension rule. Repeated requests from the EC to the MOF did not yield any positive result. The aggrieved CEC and his colleagues had ultimately to seek redress from the Supreme Court. The verdict was in their favour. The pay minus pension rule should normally apply to persons in the service of the republic. For instance, if a government servant retires on completion of his age of superannuation, but is appointed on contract to a government post, the pay minus pension rule is applied. The EC's case was different. The CEC and Commissioners were holders of constitutional offices which were not within the scope of persons in the services of the republic as defined in the constitution.

Disciplinary action against polling personnel
The EC has the authority to withdraw any officer during elections or request the concerned Ministry to initiate disciplinary proceedings against polling personnel for negligence and duties including other forms of misconduct. Such personnel generally are government servants. Whenever the EC feels that actions are necessary in the interest of fairness of polls, it requests the relevant Ministry to take action. The requests so made are acceded to by the relevant Ministry. This is based more on convention than on law although regulatory framework does provide such authority to the EC.

The Representation of the People Order prescribes punishments of officers who act as Returning Officer (RO), Assistant Returning Officer (ARO), Presiding Officer (PO), and Assistant Presiding Officer (APO) for breach of official duty by act or omission. Initially, punishment extended to fine upto five hundred taka (section 85). By an amendment in 1991, this was enhanced "to imprisonment for a term which may extend to one year, or with fine which may extend to five thousand or with both." Irregularities in voting with collusion from the above category of officers are often reported, but the legal provisions embodied in the law have hardly been invoked.

Election related offences
The Representation of the People Order provides for punishment for election offences. Such offences may occur before and during polls. The offences during polls are well defined in the above Order. The punishments are also prescribed. Initially, the punishments for election offences during polls were very light. The punishments for various offences committed or attempted to be committed during polls used to be two years of imprisonment or a fine of Tk. one thousand or both. Amendments were made in 1991 that enhanced it to seven years of rigorous imprisonment and fine subject to a minimum of two years of rigorous imprisonment. Thus for offences proved, the punishment cannot be less than two years and fine. To what extent the enhancement of the scale of punishment has conduced to free and fair polls is a matter of opinion. Apart from the fact that trial is a long drawn process, the parties affected or even the state as prosecutor tends lose interest in such cases after the result of the polls.

Violence during the polls is not uncommon. How many arrests are made and persons brought to trial is anybody's guess. Admittedly, it has nothing to do with EC as such but with law enforcing agencies. The point that is raised here is that there is no follow up so that the violators of public order do not take the law seriously. At the same time, this is an aspect that the EC needs to be vigilant about. It is too serious a business to be left to the law enforcing agencies alone.

Pre-poll offences
The Representation of the People Order does not provide many details about pre-poll offences, except for the requirements relating to a candidate's sources of fund, asset and liability statements. However, the Order (section 91) does vest the EC to "issue such instructions and exercise such powers including the power to review an order passed by any officer under this Order or the rules, and make such consequential order, as may in its opinion, be necessary for ensuring" honest, just, and fair elections. These appear to be wide powers.

It is gathered that the EC has made rules and instructions on the strength of the above section of the Order to deal with pre-poll offences. There is a Code of Conduct for the candidates contesting elections. Violations of the provisions of the Code may entail punishments in the form of fines up to Tk. 50,000.00 Originally, it was Tk. 5,000.00. This was later raised to Tk. 50,000.00

The law maker's self-serving approach
According to informed sources, the original draft rules relating to punishments for pre-poll offences suggested a stricter form of punishment for such offences. For instance, the punishment proposed was to declare the candidate's election null and void and/or withholding of a Gazette notification of results. This was not reportedly accepted by the lawmakers.

Recent events
For the next month's parliamentary by-polls, a good number of violations have been reported. This has led the EC to ask the officials to act against Code violators. Unusually, the candidates who violate the Code are warned. There is a pre-poll Committee consisting of two judicial officers who inquire into acts of violations. How far this is effective in ensuring free and fair polls remains to be assessed?

The way forward
During pre-poll stage, such events are very common. These are recurring in nature perhaps because of the lenient form of punishment. If these are recurring in nature, there is justification for a stricter nature of punishment than is available at present. Again, sometimes there are allegations that some contesting candidate or their party activists virtually resort to unlawful acts of violence to prevent the other contesting candidates from holding meetings and rallies.

Such acts should be visited with stricter punishments than is available at the moment. As explained already, the road blocks to such efforts are the politicians over whose activities the EC has no control. From this viewpoint, the EC has to be a comic opera policeman who can only coax and cajole, but has little authority to enforce its will in the public interest of free and fair polls. There is need for more debate on this issue and a national consensus so that the EC is not reduced to the status of a paper tiger or a comic opera policeman.

AMM Shawkat Ali, PhD, is a former Secretary, Ministry of Agriculture.