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RESEARCH ON

THE ELECTION COMMISSION ACT & NOMINATION PROCESS IN


BANGLADESH

By
Sumaiya Sohrab

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Chapter 1
INTRODUCTION

1.1 Background of the Study


Article 118 of the Constitution provides for the establishment of an Election Commission for
Bangladesh consisting of the Chief Election Commissioner and not more than four Election
Commissioners. The appointment of the Chief Election Commissioner and other Election
Commissioners (if any) is made by the President. When the Election Commission consists of
more than one person, the Chief Election Commissioner is to act as its Chairman. Under the
Constitution the term of office of any Election Commissioner is five years from the date on
which he enters upon office. A person who has held office as Chief Election Commissioner is
not eligible for appointment in the service of the Republic. Any other Election Commissioner
is, on ceasing to hold such office, eligible for appointment as Chief Election Commissioner,
but is not eligible for appointment in the service of the Republic. Powers of Election
Commission (Article 118(4) and 126 of the Constitution, read with Article 4 of the
Representation of the People Order, 1972): The Election Commission is an independent
constitutional body in the exercise of its functions and subject only to the Constitution and any
other law. The Commission may authorize its Chairman or any of its members or any of its
officers to exercise and perform all or any of its powers and functions under the law. Article
126 of the Constitution and Articles 4 and 5 of the Representation of the People Order, 1972
provide that it shall be the duty of all executive authorities to assist the Election Commission
in the discharge of its functions. The Commission has the power to require any person or
authority to perform such functions or render such assistance for the purpose of electron as it
may direct1.

1
http://www.ec.org.bd/English/MenuTemplate1.php?Parameter_MenuID=6&ByDate=0&Year= [last accessed
on 04.06.17]

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1.2 Statement of the Problem
The Constitution of Bangladesh (Article 118)2 gives the provision for setting up an Election
Commission for the superintendence, direction and control of the preparation of electoral rolls
for election to the office of the President and to the Parliament, and the conduct of such
elections in accordance with the Constitution. According to the Constitution, the EC is
independent in the exercise of its functions and subject only to the Constitution and applicable
laws. Bangladesh EC is constitutionally responsible for the conduct of elections in a free and
fair manner. To ensure such elections, transparency and accountability are required at all stages
of the electoral process. Although a large number of civil society organizations are engaged in
poll observation, there is a serious dearth of documented information on the EC itself, along
with a diagnosis of the EC’s limitations.

1.3 Expedition of Election Commission


Election Commission is one of those vital institutions the meaning existence of which indicates
the strength of democracy. Therefore, a strong, vigilant and independent Election Commission
was very much in vision of the framers of Constitution. The foundation of strong democracy,
in any type of society, is the process of choosing people’s representative who would speak for
them in appropriate forum i.e. Parliament and elsewhere. The Constitution is father of the
Election Commission which is born with the virtue of Article-1183. The fundamental optimum
sources of power derived from the Constitution under Article-119(1)4. The superintendence,
direction and control of the Election are from the Constitution. In the interpretation of Article-
119(1) the High Division of Supreme Court of Bangladesh while disposing a writ petition no
2561 of 2005, Abdul Momen Chowdhury and others vs. Bangladesh, the Court in a judgment
of 24th May 2005 stated that from a close reading of Article 119 of the Constitution, it appears
that the Election Commission has been a plenary power of superintendence, direction and
control of the preparation of the electoral affairs and therefore whatever power is necessary for
the purpose must be presumed to be there unless there in on ouster by express provision.5

2
Article 118
3
Article-118
4
Article-119(1)
5
Origin of Election Commission of Bangladesh: Viewed from-http//:en.wikipidia.org/wiki/election.bd. Accessed
on 04.06.2017

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Bangladesh Election Commission soon after Bangladesh was liberated, as structured under the
Constitution of 1972. Prior to the liberation Dhaka had a regional election office since ECP
was established in 1956. Therefore, the staff those constituted BEC had the continued
experience of holding elections and referendum at all Pakistan basis and Provincial Assembly
elections under civil government. The staff those played pioneering role in establishing BEC
almost from the scratch had experienced one of the cleanest elections to the then Pakistan
National Assembly in 1971 which won by Awmi leag. These officials and staff had also held
election to the East-Pakistan Provincial Assembly in the same year. These experiences paid
rich dividend setting up the BEC at the earlier stage of liberation. BEC was strengthen and
further structured on the sound footing with the enactment of the most important electoral law
the Representative of the People Order 1972. A number of the rules and regulations were
enacted in the same period. Under the new order the voting age was lowered from 21 to 18
years. Under the constitution and as per the procedure set in the RPO the first Parliamentary
Elections in Bangladesh was held in March 7, 1973. The country was delimited into 300
constituencies’ bases on the seats limited by the Constitution. A total 14 parties including
independent candidates those participated in the election in which Awmi leag under
Bangabundhu Sheikh Mujibur Rahman emerged as single majority party with overall majority
securing 282 seats out of 289 contested constituencies. Though the election was successfully
held by BEC yet it was not above, however feeble, opposition parties criticism.6
Article 65(2) reads, parliament shall consist of three hundred members to be elected in
accordance with law from single territorial constituencies by direct election…’’, though the
Constitution did not mention any system of voting rather left to the law but the Article specifies
the method election of members i.e. direct election which remains open to interpretation. Be it
as it may, the first ever Parliamentary election was held under FPTP, single constituency basis
in Bangladesh as is practiced in most of the Commonwealth and other countries of the world.
The regional countries both India and Pakistan had adopted FPTP since independence in 1947.
Keeping in view the system followed in the region and elsewhere, Bangladesh elections at
National Assembly including local government are also held adopting FPTP system.7

6
Dr. Badiul Alam Majumder, Nirbachon Commission E Choloman Dondho Oanakangkito O Ain Bohirvhuto (the
Current Conflict in Election Commission in Unexpected and unlawful), The Daily Prothom Alo, 17 December
2005
7
Ibid.

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EC was established since the liberation of the country with virtue of Article-118 of the
Constitution of the People’s Republic of Bangladesh. The Constitution itself also provides other
guarantees as regards to the function, character and authority. The Constitution further ensures
the independence of the Election Commission. Before Proceeding again on the subject heading
the Constitutional provisions needs to be examined and analyzed in this concerned. From the
Constitutional point of view as there is an Election Commission Consisting with a chief
Election Commissioner and such number of Election Commissioners for accelerating the
obligatory of the Commission. The appointment procedure of Election Commissioner subject
to the provisions of the Constitution and the Constitutional guided of the President. The
Commission is an independent in exercise of its functions and subject to only this Constitution
and any other law. The conditions of service and other affairs subject to the Constitution and
other law made by the Parliament. The tenure is fixed under the terms of the Constitution and
there is no procedure stipulated in selecting the Commissioners under the Constitution but
enacting a separate law for such selection. However, the Constitution is silent about the
independence of the secretariat that provides logistical and operational functionaries to the
Constitution.8

1.3 Research Question


 What is the status of infringement of Human Rights in Bangladesh?
 Who are the Victims of infringement?
 What is the role of law enforcing agencies to protect infringement of human rights?

1.6 Justification
The free, fair and credible election is one of the prerequisites of democratic governance. The
study focused on the democratic practice of Bangladesh since independence. Bangladesh
emerged as an independent state in 1971 from the colonial rule of British and Pakistani rulers
over two centuries. Though, the state had started its journey as a parliamentary system of
government under the Prime Minister of Sheikh Mujibur Rahman (the Father of Bangladesh),
however, within four years, it had altered as a presidential government. All the political parties
were banned and formed a political party named BAKSAL under the leadership of Sheik
Mujib. Perhaps, it was a great political mistake in the life of Mujib because most of the political

8
Present Operational Stage of EC in Bangladesh: Viewed from-
www.EC.org.bd/.../policy%20breif/.../taskforce_reports/Governancein Election in bd. Accessed on- 29.10.2013

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parties (especially leftist political parties) were dissatisfied. The next year, Sheikh Mujib with
his family members was brutally killed by a group of mid-level military officers in 1975 and
the power shifted to the Military rulers and continued till 1990.The second phase of democracy
has started from 1991, however, still, questions about real democracy are mounting from
various corners of the world including Bangladeshi scholars and politicians for its nature and
practice of election and democratic government.
Though, more than 100 political parties exist in Bangladesh now. However, two major political
allies (14 parties’ allies lead by Awami League-Hasina and 20 parties’ allies lead by
Bangladesh Nationalist Party-Khaleda) dominate the politics of Bangladesh. The present AL
government is elected by the 10th parliamentary election under incumbent (AL) government,
but a major opposition allies (20 parties) lead by BNP boycotted this election and 154 of the
total 300 seats being uncontested. As a result, AL again came to the power without a

1.2 Purpose of the Study:


1.2.1 General Objective:
The general objective of the study is to find out the role of law enforcement agencies in
protecting human rights an evaluation.
The specific objectives of the study are:
(1) Introduction;
(2) Fundamental concept regarding law enforcement agency;
(3) Concept regarding Human Rights enforcement mechanism;
(4) Functions of law enforcement agency in promotion and primitive of Human Rights;
(5) Law infringement of Human Rights;
(6) Conclusion.

1.3 Data Sources and Methodology


The present study has been followed qualitative research method. In fact, various legal research
had been published on the relevant topic which were reveled when the research work developed
in desk. Secondary data sources used for completing the study.
Data Sources:

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Data have collected from relevant books, journals, constitutional research works and many
other websites. The collected data has been revealed as per fulfilling the requirement of
research guideline.

1.5 Scope and Limitation


a) Because of lack of knowledge and capability, think this study may not fully represent
the picture of entire law enforcing agency police and government.
b) Recent political condition was full of too much apprehensive, which is responsible to
make a complex situation in the country. As a result, that was more difficult to collect
information from the general people than any other period, and it impacted on the study,
because it was not neutral political situation; because of that condition people afraid to
said real information.
c) Some interviewers were reluctant to give information about their personal
consideration on some issues.
d) As an apprentice it is not competent enough to conduct a study on the political and
sensitive issues.

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Chapter 2
THE ELECTION COMMISSION IN BANGLADESH (LAWS)

2.1 Establishment of Election Commission


The President appoints the Chief Election Commissioner and other Election Commissioners
under Article-118. The Commission consists of a Chief Election Commissioner and such
number of other Election Commissioners as the President may from time to time direct.
However, from the language applied in Clauses-(1) and (2) of Article-1189, it becomes clear
that Election Commission may be constituted even with the Chief Election Commissioner
alone. The question of fixing the maximum number of Election Commissioners was raised
seriously during 2006.

2.2 Election Commission’s Own Laws


The purpose of Election laws includes 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.
To prosecute duties as prescribed which are supposed to perform there needs to exist other laws
other than Constitution.
Representation of People Order 1972, The Conduct of Election Rules 1972, and The Code of
Conduct 1996 has been framed for fixing the procedures to be followed and the measures to be
undertaken by the Election Commission. The Election laws comprise of all these orders, rules
and regulations.10 With the assistance of these laws and Constitution, the EC conducts the
Elections.

9
Article-118
10
The Elections Governing laws in Bangladesh: Viewed from- http//:Thaizbangladesh.net/election.phn. Accessed
on 25.05.2017

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2.3 Delimitation of Constituencies for Election
Delimitation of Constituencies to the parliament is one of the major functions of Election
Commission. On the other hand, delimitation of local body’s constituencies is usually the job
of Local Government Ministry. Administrative unit, location of the settlement, number of
voters is major factors for delimitation. Last delimitation of constituencies for the parliament
election has completed on 1991.Resettlement of voters and new growth centers taken place
demand delimitation, but it was ignored in past due to undue political pressure. It is considered
as an unpleased job and was avoided by the Commissions in the past. Delimitation is one of
the agenda of this Commission, placed in the Roadmap to be completed before election.

2.4 Duties of Election Commission


Election Commission an independent constitutional body entrusted with the responsibility of
holding national and local government elections. It announces schedules of elections, delimits
constituencies, prepares election rolls, supervises elections, announces election results and
establishes election tribunals to settle election disputes. Part VII of the Constitution of the
Peoples Republic of Bangladesh defines the composition, powers and functions of the Election
Commission. The Bangladesh constitution provides that’ there shall be an Election
Commission consisting of a Chief Election Commissioner and such number of other Election
Commission, if any, as the President may from time to time direct.’ At present, the Election
Commission consists of three members including the Chief Election Commission. The Election
Commission is constitutionally oath-bound to ensure free and fair elections to the office of
President of the Republic, and to Jatiya Sangsadand local government bodies. The Elections
Commission maintains close relations with all political parties. On matters of election schedule,
election process and overall arrangement for elections, dialogue is initiated with all political
parties. Discussion on issues relating to voter registration, preparation and updating of electoral
rolls and relevant matters is also held with contesting political parties.11

2.5 Independence of Election Commission


The functional and institutional independence of the Commission is ensured in the Constitution.
Article-118(4) specifically mentions that the Election Commission shall be independent in
exercise of its functions. The term of office of an Election Commissioner is fixed for five years

11
Ibid.

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from the date on which he enters upon his office. An Election Commissioner cannot remove
from his office except like manner and on like grounds as a judge of the Supreme Court. 12 To
make an Election Commissioner free from bias or influence in the exercise of his power,
Article-118(3) provides that a persons who has held office as CEC shall not be eligible for
appointment in the service of the Republic and any other election Commissioner shall, on
ceasing to hold office as such, be eligible for appointment as CEC but shall not be otherwise
eligible for appointment in the service of the Republic.9 The Representation of People’s Order,
1972 also guarantees the independence. However, the independence also certainly depends on
the actions of the Election Commission. If the Election Commission proceeds with a
democratic mandate, then the concept of independence will be complied with.

2.6 Principles of Election Commission


A freedom is inherent human right, but it is also fragile and can be lost through neglect or
misuse. Freedom requires responsibility. Freedom can be maintained and nurtured through the
democratic process. The success of the democratic process requires fair and open elections
which accurately reflect the intent of the electorate through election commission. Therefore, it
is the unique role of election officials to serve as gatekeepers of democracy. It is the sacred
honor to protect and promote public trust and confidence by the conduct of election
commission. As the public’s guardians of freedom within a democracy society, election
commission is responsible for the integrity of the process. These roles demand that these
principles must be placed above personal or partisan gain. Nurturing and protecting democracy
are the team effort in the profession of elections administration. Election Commission task
requires wisdom, courage and the desire to remain focused on the vision of free and impartial
elections despite changes in our society and its laws. By dedicated adherence to these principles
and Standards of the Conduct, it demonstrates the loyalty to freedom, pride in the profession
and a commitment to the excellence of the democratic process through a neutral and strong
Election Commission.

2.7 Corruption in Election Commission


Corruption of Election Commission under Article-120 of the Constitution of the Peoples
Republic of Bangladesh, the President shall, when so requested by the Election Commission
make the available to it such staff as may be necessary. So most of the practical scenario of this

12
The Constitution of the People’s Republic of Bangladesh, Article-188(3) 9 Ibid, Article-118(5)

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country is that President of the country is a political leader and appointment system is not clear
so on the basis of demand of EC, the President shall appoint such person. So there is a call-in-
question to the opposition parties and mass people that whether the appointment system is
neutral or not Election Commission can make corruption of this system and so they cannot
avoid of this incidence.
Political parties are essential institution of a democratic society. Their growth is through the
participation of the people directly or indirectly. These institutions are based on ideas which
are propagated through agenda and implemented when in power. Election is the only legitimate
means to secure power through people's legitimate votes. Unless fair, free and transparent
elections are held it is difficult for parties aspiring to replace the party in power. Therefore, it
is essential that the EBM creates an even field for all participating parties. So, it is fair to assume
that it is the political parties who should be the main vehicles for change in electoral system
more responsive to the changing election atmosphere.

2.8 To What Extend Election Commission Reformation is Necessary?


The apex court decision on the unconstitutionality of the Caretaker Government system and its
hast abolition by the government has generated serious concern among those desirous of free
and fair elections to propel a robust democratic governance. This incumbent government and
the opposition alike publicly support free and fair election but they differ on how to achieve it.
Election is one of the inevitable pre-requisite of democracy. So, free and fair election at any
level is a must for an ideal and sustainable democratic system. For this reasons, a standard
electoral process is very important for smooth running of our government, state mechanism,
development, national growth and a peace loving foreign policy. The recent constitutional
amendments and legal changes concerning the electoral process are very much significance for
achieving goal enshrining the Constitution in the absence of the Caretaker Government. No
legal provision or system of accountability of the Election Commissioners and other officials
exists, as a result of which millions of public and donor money was wasted in different
projects.13 Election laws have been interpreted differently by different Commissioners and
other EC officials, indicating the complexity of the law and vested interest of manipulating the
situation. Gross violation of law and rules with regard to voter list preparation and updating

13
EC IN BD and OVER View: The unique role of the EC is being confined to the delivery of social services and
advocacy for a better poll. They have to develop political ventures in order to elect a democratic government.

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indicates poor understanding of such law by CECs and Commissioners14. Questions may be
raised on such confusions even most of the CECs and Commissioners were from the judiciary.
Implementation of law has not been strictly maintained by most of the CECs, although the EC
has enough power within the existing law. Non-implementation of these laws indicates weak
moral standing of the Commissioners including the CECs.15 On the whole, this is to uphold the
democratic government, a free and fair election is a must. For such the present election
commission should be reformed. As the Caretaker Government system is abolished so why the
standing election procedure is supposed to alter to bring a good election commission for the
betterment of the Republic. It may be the way of poll and code and conduct of the parties
concerned. And these processes which are outdated for better election.

2.9 Grounds to Reform Election Commission in Bangladesh


From the diagnosis of the EC, it is revealed that the EC in reality has to depend on the
government functionaries in respect to appointing CECs and other Commissioners, recruiting
staff for the EC Secretariat, discharging its functions at field level during elections, maintaining
law and order, and managing different financial issues including budget allocation and
disbursement of funds. The EC’s neutrality is hampered due to arbitrary appointment of CECs
and Election Commissioners with partisan image, recruitment of local level election officials
with partisan background, politicization of the NCG, and planned placement of officials of the
administration before elections.16 All these are reflected in the results of elections in favor of
the ruling party. The EC has not been up to the mark in terms of efficiency since there is
existence of fake voters in the voter list, irregularities in voter list preparation, imbalance in
voter distribution due to not conducting delimitation of constituencies over the last 22 years,
lack of actions undertaken on electoral malpractices, and controversial roles played by the CEC
and other Commissioners.17

14
Ibid.
15
Bangladesh Election Commission: A Diagnostic Study: Viewed from- http://www.ti-bangladesh.org. Accessed
on-04.06.2017
16
Bangladesh-Economic Reconstruction after Independence: Viewed from
http://www.mongabay.com/history/bangladesh/bangladesh-economic_reconstruction_after_independence.html.
Accessed on 28.05.2017
17
M. Jashim Ali Chowdhury, An Introduction to The Constitutional Law of Bangladesh, 1st Edition, Northern
University Bangladesh(NUB), 2010, pp. 496

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2.10 Unrest Situation among Political Parties in Respect of Belief
There is a serious lack of professionalism in terms of discharging the functions of the EC in
respect of political dialogue. Poor understanding of electoral laws, non-implementation of the
laws, nonperforming regular jobs such as delimitation and updating the voter list, lack of
precedence, handing over responsibilities, lack of proper orientation to the job nature at the EC,
sense of accountability, and absence of stock taking indicate that capacity building is necessary
for the Commissioners as well as other officials of this institution.18 There is no government
policy on strengthening the EC in terms of using the experience of field level officials through
their proper placement. These lacunas bring the political parties in unrest mode showing their
faith each other when the poll is held under the commonplace Election Commission. The 15th
amendment brings the political parties in more outdated situation.19 The present EC is opt to
hold such level of election though City Corporation Election is being held under it. But the face
of it is not seemed to more confidence, these question to the commentator for criticize and mark
to the ultimate poll questionable. This is all about puts an Unrest Situation among Political
Parties in Respect of Belief.

2.11 Procedure to Reform of Election Commission


The cost of actions of the EC are quietly depends on financial affairs. However, it is dependent
on the Ministry of Finance for its budgetary allocations. Considering the experience to conduct
election and election-related expenses such as voter list updating, training of the personnel,
costs of the administrative machinery, the Commission estimates the yearly budget. However,
the Ministry of Finance does not necessarily provide the amount as required. There is a huge
gap between the demand placed by the EC and provided by the ministry. Sometimes the
ministry delays fund disbursement which hampers the activities of the Commission.20 So the
reformation should be addressed with considering each and demands arising from different
department. The starting concerned point is to be the financial offspring which is the ultimate
fuel to conduct a good mechanism of election. This is the soul matter of the Ministry of Finance.
So first of all the sources of money should be ensured for any actions arising from election

18
Bangladesh Election Commission: A Diagnostic Study: Viewed from- http://www.ti-bangladesh.org.
Accessed on 11.05.2017
19
Ibid.
20
Corporate Responsibility to the EC in BD: Viewed from
https://www.google.com.bd/search?q=corporate+responsibility+and+election+&ie=utf. Accessed on-03.16.2017

13
commission. Then the requirements of staff are to be appointed from talents searching for
authentic business. Since all the features demand finance, so for the transparency and fairness
should be a guide for a procedure of reformation of election commission. The EC demands
assistance from the State Ministry. So every Department of the State should be availed to link
up with the EC. These are the aspects need to be considered reformation of election
commission.21

21
Ibid.

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Chapter 3
NOMINATION POLICIES IN BANGLADESH

3.1 Expenditure Incurred for Electoral Campaign till Withdrawal of Nomination


This study reveals that up to the last date of withdrawal of nomination (11 December 2008),
i.e., before commencement of legally permissible campaign and spending for the same, the
candidates spent on an average Tk 304,418. This expenditure was incurred for campaign in
religious gatherings, gifts and grants, public relations and public meetings, rallies, party
workers and leaders, and transport.

A total amount of Tk 17,135,400 (Tk 389,441 on an average) was spent by the 44 BNP
candidates, whereas Tk 15,779,200 (Tk 309,396 on average) was spent by 51 AL candidates.
Among the BNP candidates, the highest amount spent by one candidate was Tk 1,978,000,
while the highest amount spent by an AL candidate was Tk 1,602,500. However, the highest
amount (Tk 3,850,000) spent by any individual was by one independent candidate. It is
mentionable that before finalization of candidature, any kind of electoral campaign and the cost
incurred for such purpose are illegal.22

3.2 Expenditure Incurred for Election Campaign: From Withdrawal of Nomination till
the Election Day
For the first time the maximum limit of electoral expenditure was set by the EC based on the
number of voters in a constituency. Accordingly, each candidate can spend Tk 5.00 per voter
but cannot cross the limit of Tk 1.5 million. Among the constituencies surveyed, the average
upper limit of expenditure was Tk 1,315,120 – the lowest Tk 910,795 in a constituency while
Tk 1.5 million in another.

It is observed that 88 candidates spent Tk 4,420,979 on an average during the legal time frame
for election campaign. The highest amount spent by a candidate was Tk 28,100,000, while the
lowest amount spent by another was Tk 434,000. Keeping in mind the average expenditure

22
TIB Report, 20014

15
limit, the candidates overspent Tk 3,105,859 on an average. The elected candidates (40) spent
Tk 4,569,804 on an average, whereas the defeated candidates (48) spent on an average Tk
5,865,783.

Considering party affiliation, it was observed that the candidates of BNP, JI and JP (Ershad)
spent over Tk 5 million, whereas the candidates of AL spent Tk 3,567,321 on an average. Only
12.5% of the 88 candidates spent within the upper limit as determined by the EC. Among them
six were from AL, while four from BNP and one independent candidate. The four female
candidates spent Tk 2,635,262 on an average, whereas the rest 84 male candidates spent an
average amount of Tk 5,064,537. However, the highest amount spent by a female candidate
was Tk 4,852,000 whereas the highest amount spent by a male candidate was Tk 28.1 million.23

Chart 2: Electoral Expenditure by the Candidates (in range)

6000001 and more 26.1

4500001 - 6000000 12.5

3000001 - 4500000 20.5

1500001 - 3000000 28.4

100000 - 1500000 12.5

0 5 10 15 20 25 30
Percentage

The candidates spent the most for maintaining public relations. For this purpose they spent Tk
1,801,989 on an average. These activities included organizing rallies, processions, and public
meetings. After this they spent (on average) for workers (Tk 1,380,311), camp installation and
maintenance (Tk 853,960), poster and sticker printing (Tk 521,425), and entertaining with
refreshments (Tk 263,833). However, seven candidates spent an average amount of Tk
1,027,000 for development activities.

A number of candidates started spending even before the declaration of election schedule.
Adding this amount the candidates spent an average amount of Tk 4,751,068.

23
Bangladesh Observer, 2nd July, 2015

16
Chart 3: A comparison between Average Expenses found in Research and Amount
Shown as Return

4420979
4500000
4000000
3500000
3000000
2500000
Tk
2000000
1500000 1007920
1000000
500000
0
Amount shown in Amount actually
return (average) spent (average)

3.3 Submission of the Return of Electoral Expenditure

According to the law, every candidate must submit the return of electoral expenses within a
month from the date of election. It was observed that 95.45% of the candidates under this study
submitted the return. Among the four who did not submit the return in time, the EC issued a
written complaint against one, and till 11 February 2009, no step was taken against the rest
three. Assessing the returns submitted to the EC, it is observed that all the candidates showed
their expenses within the allowed expenditure limit set by the EC. The average expenditure as
shown in their returns is Tk 1,007,920. Among these, the highest was Tk 1,499,450, while the
lowest Tk 45,000.

3.4 Violation of Electoral Code of Conduct

Apart from spending over the allowed limit, the highest number of candidates violated the Code
of Conduct by using more microphones than the allowed number and for long hours (29.55%).
Posting posters on walls, pillars and trees, printing multi-colored posters and of a size larger
than the allowed size (19.32%), rallies using motor-cycles and buses (15.91%), and distributing
money among voters (12.5%) were other violations by the candidates.

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3.5 Post-poll Violence

After the election, the incidence of violence was observed up to 20 January 2009 in the survey
areas. Among these the highest number of incidences was of beating the political rivals, which
took place in areas located in Barisal and Khulna divisions. Three people got killed in three
areas. In most cases the leaders and workers of the defeated candidates suffered. However,
against 79 incidences only 12 were reported and cases were lodged at the police station.

3.6 Electoral Conduct and the Role of the Stakeholders

Caretaker Government

The Caretaker Government took some steps for institutional and political reforms to hold an
election free from corruption and black money. The separation of the Judiciary, reconstitution
of the Anti-corruption Commission (ACC), Public Service Commission (PSC) and the Election
Commission (EC), accession to the UN Convention against Corruption, and over all the effort
to make corruption a punishable offense created a new scope for the institutionalization of
democracy. The Government made the registration of the political parties mandatory as a
precondition of participating in the election through amending the Representation of the People
Order 1972 (RPO) to ensure the transparency of the political parties and bring them under an
accountability structure. Besides these, the Government put its highest effort to create a
levelplaying field for all parties, gave the loan and bill defaulters opportunities to take part in
the election, and maintained the pre-election environment peaceful than any other time.

Election Commission
Positive Role: The highest effort from the EC to ensure participation of all parties in the
election was observed. The EC launched a series of dialogues with all the parties. The election
schedule was revised a number of times in response to the demands made by different parties
and coalitions. The EC performed the tasks of developing a flawless voter list, delimitation of
constituencies, registration of parties, endorsed a code of conduct for the parties and candidates,
printing the voter list, providing with transparent ballot boxes, and allocating symbols for
parties and candidates in due time. Even after the finalization of candidature 119 candidates
retained their candidature from the court, and for that the EC had to make necessary changes
in the ballot paper and candidate list. The EC was successful in finalizing the candidature by

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verifying the information provided by the applicants. The EC also arrested and detained the
government employees against whom allegations were raised for having political affiliation.

Constraints/Failures: Throughout the country 72,275 voters could not cast their votes as theirs
names were not found in the voter list. In some voting centers the voters faced difficulty in
finding out the voting booth due to some management failures. The EC did not take any
measure against some candidates who did not provide all the information in the affidavit. The
EC also did not have any role in implementing the law of keeping the electoral expenditure
within the limit of Tk 1.5 million. The EC made delay in taking decisions with regard to sending
the Judicial Magistrates to the field to oversee the violence of electoral codes. In the last
moment the EC decided not to send them to the field level. According to Article 44D (3) of the
RPO 1972, the EC was supposed to upload all the information of electoral expenditures of the
candidates on the website, which has not been done till the release of this report.

5.3 Political Parties


For the first time in the history of Bangladesh elections, the leading political parties submitted
the return of electoral expenses within the stipulated time. This is an indicator of positive
changes in the political culture of our country. However, the parties opposed from time to time
different decisions of the EC such as reviewing party constitutions for registering with the EC,
and giving the EC authority to cancel candidature. The leading parties nominated a number of
candidates against whom there were allegations of loan and bill default, avoiding payment of
income tax, and for some allegation of war crime. A large coalition put a demand for
withdrawing the bar on retired government officials and loan defaulters to take part in the
election. Later the same coalition demanded that the electoral Code of Conduct be relaxed.
Some electoral codes were violated by the large political parties, such as organizing public
meetings blocking the roads, and using religion in electoral campaign.

Candidate
Positive Role: In this election a tendency to abide by the electoral code of conduct in general
by the candidates was observed. Apart from a few exceptions the candidates organized public
meetings peacefully. They also showed tolerance towards their opponents.

Negative Role: A few candidates did not provide all the information in their affidavits, although
it was mandatory for them. Most of the candidates spent more than the allowed limit, although
all of them showed their expenditure within limit. In six areas some of the candidates violated

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the Code of Conduct. Apart from the visible expenses, some candidates spent for buying
candidature, buying votes, and influencing the administration. Few candidates did not submit
the return of expenditure within the deadline of one month after the election.

Civil Society
The members of the civil society and different civil society organizations continued their
demand to bring in changes in the political culture for a long period. During the ninth
parliamentary election a few civil society organizations including TIB organized a number of
public meetings where the candidates in an area appeared together before the public. These
organizations launched a wide range of campaign on electing the right candidate. Some of these
organizations also played a crucial role in creating public opinion against the war criminals.

Election Observing Institutions


According to the EC, the highest number of national and international election observing
institutions observed on the Election Day. Under the Election Working Group (EWG) around
178,000 local observers and around 500 foreign observers observed the election. However,
allegations were raised against a number of such organizations for appointing observers by
violating the election observation codes.

The Media
Positive Role: During this election the role of the electronic and print media was more positive
than in any other previous election. For the first time the media focused on the information
provided by the candidates in their affidavits. Almost in all the private television channels, live
talk shows were telecast on election, which played a crucial role in raising awareness among
the voters. All these channels covered the Election Day and followed up with latest news on
election results.

Limitations: However, the media did not pay adequate attention to the candidates alleged to be
corrupt. Few channels also telecast biased news with regard to violation of the electoral codes.

3.7 Reasons behind the Violation by Candidates


In the RPO 1972 there is no provision of verifying the return submitted by the candidates and
parties. There are also some inconsistencies in the RPO and the Code of Conduct rules with
regard to the punishment for similar violations. Apart from this, some candidates do not provide
with proper information on their educational qualification or sources of income. Although the

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electoral expenditure has been limited to Tk 1.5 million by any candidate, the EC does not have
any system to monitor the expenses by the candidates. In the last election the EC did not apply
few provisions of the RPO (such as Article 91 E on canceling candidature), whereas in few
cases it failed to implement the law equally against all.24

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Article 91 E

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Election laws in Bangladesh
SM Saiful Haque, Raju Mollah
Representation of the People Order (RPO), 1972 is the principal law in election related
matters

Photo- Dhaka Tribune


The Election Commission of Bangladesh (EC) is the constitutional body, which has been
working to ensure the people’s right to vote and elect their representatives in the parliament.
Article 118 of the Constitution of Bangladesh gives the provision for setting up an EC for the
superintendence, direction and control of the preparation of electoral rolls for election to the
office of the president and to the parliament, and the conduct of such elections in accordance
with the Constitution.

Formation of election commission

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Article 118 of the constitution notes that the president is empowered to appoint the chief
election commissioner, and not more than four election commissioners for five years, following
the provisions of our constitution and the provisions of any law made in regards. In addition to
that, the EC has its own secretariat, as per the Election Commission Secretariat Act, 2009,
headed by a Secretary. The secretariat is in Dhaka and has an electoral training institute, field
offices at the regional, district and upazilla/thana level. There are 10 regional election offices
and 83 district election offices in the 64 districts.
Functions of election commission
Article 119 of the constitution mentions that the superintendence, direction and control of the
preparation of the electoral rolls for elections 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 this Constitution and any other law to:
(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
(d) prepare electoral rolls for the purpose of elections to the office of president and to
parliament
According to the Constitution, the EC is independent in the exercise of its functions, and subject
only to the Constitution and applicable laws. Bangladesh EC is constitutionally responsible for
the conduct of elections in a free and fair manner. To ensure such elections, transparency and
accountability are required at all stages of the electoral process.
Legislations
The Constitution of the Peoples Republic of Bangladesh, 1972, is the key law for the EC. The
second most important law with regard to the functions of the EC is the Representation of the
People Order (RPO), 1972. A number of laws, rules and regulations have also been enacted
and/or provided. These laws discuss, in detail, procedures of different functions such as
preparation of electoral rolls, delimitation of constituencies, election of the president and
women members of parliament, and conduct of the elections. Another set of laws and rules
provide for administrative functions with regard to salary and privileges of election
commissioners, and appointment, promotion and transfer of the officials and staff of the EC
Secretariat.
Moreover, EC prepares code of conduct of candidates for different elections. The EC has
updated the Code of Conduct for Parliament Elections, 2008 ahead of the 10th parliamentary
election which is scheduled to be held on January 5, 2014.

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Establishment of Election Commission
118. (1) There shall be an Election Commission for Bangladesh consisting of 1[ the Chief
Election Commissioner and not more than four Election Commissioners] and the appointment
of the Chief Election Commissioner and other Election Commissioners (if any) shall, subject
to the provisions of any law made in that behalf, be made by the President.
(2) When the Election Commission consists of more than one person, the Chief Election
Commissioner shall act as the chairman thereof.
(3) Subject to the provisions of this Constitution the term of office of an Election Commissioner
shall be five years from the date on which he enters upon his office, and –
(a) a person who has held office as Chief Election Commissioner shall not be eligible for
appointment in the service of the Republic;
(b) any other Election Commissioner shall, on ceasing to hold office as such, be eligible for
appointment as Chief Election Commissioner but shall not be otherwise eligible for
appointment in the service of the Republic.

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(4) The Election Commission shall be independent in the exercise of its functions and subject
only to this Constitution and any other law.
(5) Subject to the provisions of any law made by Parliament, the conditions of service of
Election Commissioners shall be such as the President may, by order, determine:
Provided that an Election Commissioner shall not be removed from his office except in like
manner and on the like grounds as a Judge of the 2[ Supreme Court].
(6) An Election Commissioner may resign his office by writing under his hand addressed to
the President.

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Functions of Election Commission
119. 1[ (1) The superintendence, direction and control of the preparation of the electoral rolls
for elections 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 this 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
(d) prepare electoral rolls for the purpose of elections to the office of President and to
Parliament.]
(2) The Election Commission shall perform such functions, in addition to those specified in the
foregoing clauses, as may be prescribed by this Constitution or by any other law.

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