The 'Representation of the People (Amendment) Bill, 2023' was passed in Parliament this week, in the closing stages of what became an extended budget session. The key amendment has the very clear effect of reducing the overall power of the Election Commission, by stripping it of the authority to cancel an entire constituency's vote if necessary.

It does still retain the authority to postpone or cancel the results, or voting at any number of polling stations across any number of constituencies on polling day - but then it cannot extend its order to cancel the entire election to a constituency.

Law Minister Anisul Haq moved the Bill in Parliament, which was passed by voice vote. Through this, amendments were brought to the Representation of the People Order, or RPO - the law that governs elections in Bangladesh.

As per the amended RPO, the Commission may postpone or cancel the results of one or more than one polling station at any time during balloting (polling day) or ballot counting, for any reason it deems fit.

But there is no provision for cancelling the entire election to a constituency in the amended RPO- as happened during the Gaibandha-5 by-election last October. The Commission's unexpected move on that occasion clearly ruffled some feathers in the government, and through the amendments it has clearly moved to close down any perceived loophole that may be exploited to upset the government's plans centring the election.

The law previously stated, in Section 91A of the RPO, that the Commission may "stop the polls at any polling station [or entire constituency, as the case may be] 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 at the election."

The section in parentheses mentioning the entire constituency has been removed. The amendment replaced the word 'election' in this section with 'polling'. Whereas polling denotes the activity on the day of the vote, election denotes the entire process including the period of electioneering.

After that, a new paragraph has been inserted in the amended RPO. The new paragraph states: "The Commission may withhold the result of any polling station or polling stations, if it is convinced that the result of such polling station or polling stations was grossly prejudiced by malpractices including coercion, intimidation, manipulation or otherwise, and after prompt inquiry of the matter, in a manner as it may deem appropriate, direct publication of the result of such polling station or polling stations or declare the election of any such polling station or polling stations cancelled with direction for holding of a fresh poll in such polling station or polling stations, as that may seem to it to be just and appropriate."

A provision for punishing those who hamper the media from performing their "lawful" duty during the election is also included in the amended RPO.

Another new paragraph is inserted where it says that "If a person by threat, intimidation, hurt or otherwise by application of force, obstructs or tries to obstruct any person performing duties in connection with any election under this Order, or obstructs or tries to obstruct any representative of media or observer authorised by the Commission in connection with any election under this Order, and/or does any harm to his body or damage to his equipment related to performance of duty or prevents or tries to prevent any voter from going to polling station to cast vote or any candidate from submitting nomination paper, or compels or tries to compel any candidate to withdraw nomination paper, shall be guilty of an offence and shall be punishable with rigorous imprisonment for a term which may extend to seven years and shall not be less than two years, and also with fine."

Other changes, sundries

In a less important change, whereas in the previous RPO the decision of a returning officer regarding cancellation of a nomination paper could be challenged, as per the amended law, the decision of a returning officer that declared a nomination paper valid can also be challenged. So an appeal can be made against any decision of a returning officer regarding both cancellation and acceptance of nomination papers.

An MP aspirant cannot be a loan defaulter and he needs to clear all due instalments, and utility bills before the date of submission of the nomination papers.

The amended RPO allows the candidates to pay their microcredit loans and telephone, gas, electricity, water government service bills till the day before submission of nomination papers. Previously these loans and bills were to be paid 7 days before nomination paper submission.

The aspirant needs to attach a TIN certificate and receipts of tax payment with a nomination paper as well.

As per the amended RPO, the EC can appoint a returning officer for one or more constituencies. It has been made constituency-based also, whereas it was previously district-based.

Law Minister v Critics

Taking part in the discussion, Fakhrul Imam of Jatiya Party said that the amendments create an environment for fair elections, but questioned the extent to which the EC is undermined through it.

"How many clauses have been inserted in the RPO through which the Election Commission is being undermined?" he asked.

"We knew Election Commission could stop any election at its will. But this right was curtailed. What is done now? They can close the centres but not the entire election. If this is the case, how will we conduct the impartial election with this EC?"

Fakhrul Imam said that a big difference has been made by bringing the word 'polling' instead of 'election' in a section of the law.

"We have invited the defaulter to the election by providing for repayment of the loan up to the previous day. I don't think that what is happening in this law will make it possible to hold fair elections in Bangladesh with this commission. Withdrawal of the proposed amendment may be a way to restore confidence in the Election Commission."

Gonoforum MP Mokabbir Khan said that the intention of amending this law is noble but the reality is different.

"Laws are made in the country for the benefit of individuals, groups and governments. Such laws are made before elections," he said, and that the electoral system has been destroyed during the current government in such a way that people are now averse to voting.

"Those who are agitating to overthrow the government are no less responsible for this. They made more than one crore fake voters," he said. Mokabbir Khan also said that the people of the country are deeply concerned about the next national elections.

"Anxiety about the election has spread outside the country. Because all the elections held under the party government are questionable. The people of Bengal do not want such elections. People want an inclusive election under an impartial government."

He said that a few days ago, the Prime Minister said in response to the complaints of the opposition party, 'If we are vote thieves. Then BNP are vote dacoits.'

"Thanks to the Prime Minister for admitting the extreme truth. People don't want to see vote thieves and dacoits playing anymore. People don't want vote thieves, they don't want vote robbers either."

He mentioned that although the Election Commission is a constitutionally independent institution, in reality every party government is trying to protect the interests of the government as an 'unconscious institution'.

Jatiya Party MP Rustam Ali Farazi said that if there is a will, it is possible to vote fairly within the country's constitution and existing laws. "It depends on EC's mindset. Their backbone is not strong in Bengal. Even if a hundred laws are made, nothing will happen to spineless people."

Pir Fazlur Rahman said that the power of the Election Commission has been curtailed in this law: "Our past experience with elections is not good. Even after 52 years of independence, the electoral system has not been strengthened."

He said that earlier, where there was an opportunity to stop the entire polling, the Election Commission is now blocked from taking that action. "The EC would have been stronger if the '72 order (original RPO, 1972) had been upheld."

Responding to the opposition's criticism, the law minister said that there were 100-140 polling centres in each constituency. Previously, if there was any violence or irregularity in 3/4 polling centres, the election of all polling centres could be stopped.

"But that is against democracy. It is against people's right to vote. Because there was no violence or irregularity in the rest. That is why it has been said that where there is violence or irregularities, they will stop. I did not understand why they say that the powers of the Election Commission have been curtailed. Their words are invalid."

The minister said that Prime Minister Sheikh Hasina's government is committed to fulfilling the promise it made to the people regarding holding free, fair and impartial elections. Anisul Haque said that the amendment being questioned was not in the RPO of 1972. The present Election Commission proposed this amendment. But when it went to the Cabinet, the 'undemocratic' clause was amended.

Regarding the last day loan payment, he claimed that this has been done so that the money is returned. He categorically said that the opposition party did not want to accept the EVM. The Election Commission has said that the election will not be held by EVM: "In this case, I did not understand what is the fault of the Awami League government."

Commentary

The Gaibandha by-election was literally the one instance in which an Election Commission has shown a streak of independence in the last 10 years But it has caused the government to act and take away the power upon which the EC acted on that occasion.

Although in principle, yes, irregularities in a few centres ("1 or 2", or even 3-4 as the law minister said) should not lead to an entire election being scrapped, in Gaibandha the EC only acted after finding irregularities in 48 centres out of a total 151 - which is no doubt significant. When there are irregularities at upto one-third of the centres, any Commission should have the power to say the overall vote has been too tarnished for the result to stand. How many centres it takes should be entirely at the EC's discretion. But the law has been amended to take that power away from them entirely. They can only cancel voting in individual centres.

A separate amendment, i.e. the substituting of the word 'election' with 'polling' in Section 91, takes away the EC's power to cancel elections to any constituency at all, based on its assessment of voting conditions, level playing field, etc PRIOR to polling day. This too has a history with the present EC - it is the power it could have exercised but didn't in the Cumilla mayoral election, only to regret it publicly later. Long story short for those who don't recall: the EC didn't threaten influential MP Bahar with cancellation of the poll if he didn't leave the electoral area, as the first Huda Commission had with Md Nasim I believe. Bahar was only requested to leave via written correspondence. The CEC later regretted it, after enough voices told him what he should have done. But the option even to use it as a threat will now be gone.

Between these two amendments, you basically curtail the EC's entire power to scrap elections, drastically reducing its authority. It will be like a referee allowed to see the foul, but not blow the whistle.