Chief Election Commissioner KM Nurul Huda seems to have misread significant jurisdictions of the Election Commission and rights of the political parties by expressing inability to intervene if any registered political party's activities are hampered before the announcement of the polls' schedule.
A careful reading of the constitutional and other legal provisions shows how the EC requires to intervene if a registered political party is denied of its legal rights to function freely even before the announcement of election schedule.
Here we would like to examine the existing legal provisions one by one.
First, the definition of “political party” needs to be noted before we discuss its rights.
According to Article 152 (1) of the Constitution: “Political party includes a group or combination of persons who operate within or outside Parliament under a distinctive name and who hold themselves out for the purpose of propagating a political opinion or engaging in any other political activity.”
This definition suggests that leaders and activists of a political party should have some fundamental rights “for the purpose of propagating their political opinion or engaging in any other political activity.”
And the Constitution itself grants the political parties' leaders and activists along with citizens of the country some basic rights including freedom of peaceful assembly and freedom of association.
According to Article 37, they enjoy the right to assemble and to participate in public meetings and processions peacefully and without arms. However, any reasonable restriction may be imposed by law in the interest of public order or public health. This means no arbitrary action can deny any political party or citizen of his or her rights.
Article 38 provides people the right to form associations. Any reasonable restriction may be imposed on the rights by law, not by any arbitrary action, in the interests of morality and public order.
Some restrictions and conditions were imposed on the parties in the Constitution and in the Representation of People Order (RPO) in 2008 before around 40 parties registered with the EC.
Registration of Jamaat-e-Islami, however, was scrapped by the High Court later as it ignored the criteria for registration. The EC has also refused to register some parties on the same grounds.
Therefore, it can be said that each of the registered parties is now a separate legal entity with the rights to propagate a political opinion or engage in any other political activity like assembling, and holding public meetings and processions.
The question is: should the EC intervene if any registered political party is denied of its constitutional rights? The answer lies in the existing legal relations between the EC and registered political parties.
Prior to the registration of political parties with the EC in 2008, no legal relations existed between them.
After introduction of registration—mandatory for a political party to qualify for contesting the parliamentary election—things have changed as the RPO 1972 granted them some rights and outlined some dos and don'ts.
Now, each of the registered parties enjoys the right to receive a specified amount of donation or grant from any person, company, group of companies or non-government organisation to carry out its activities.
At the end of every calendar year, each of them must submit an audit report to the EC specifying its income and expenditure in the outgoing year.
They also have the right to consult with the EC in matters relating to election, particularly problems of measures needed to hold elections fairly, peacefully and in accordance with the RPO and other electoral rules.
Registration of a political party may be cancelled if it fails to contest two consecutive parliamentary elections and submit audit reports in three consecutive years, according to the RPO.
This shows how the RPO provisions empower the EC to hold the parties accountable for their annual income and expenditure for carrying out activities. It can also punish a party for violation of the conditions for registration.
If so, shouldn't the EC keep its eyes open in case its registered political parties face difficulties to carry out their activities? How will the EC enforce its authority if it does not have anything to say to protect a registered party's rights?
If a political party is not allowed to freely propagate its political opinion or engage in any other political activity over the five years, is it possible for the party to prepare itself for the polls within the period of only one and a half months that it will have after the announcement of the election schedule?
No matter if it is prepared or not, it must contest the polls and submit annual audit reports regularly to maintain its registration with the EC. And if that is so, this legal provision appears to be ridiculous.
If the EC remains silent who will act to protect registered political parties' rights from arbitrary actions by the government or any other authority? There is no one else.
According to the RPO provision, a registered party must have elected committees in all of its tiers. For this a party needs to hold councils. Shouldn't the EC intervene if a registered party is not allowed by any authority to hold the councils? Or will it have to wait for the announcement of the election schedule?
The political party's registration process also argues for the necessity of the EC's intervention anytime before the announcement of the election schedule.
For example, if a political party applies to the EC to obtain registration, it will need to fulfil some criteria like setting up of functional headquarters and a specified number of functional offices at district and upazila levels.
If the party is barred by the authorities from operating the required number of offices countrywide, it will not acquire registration. In such a situation, shouldn't the EC intervene? Can it cite the excuse that it cannot do anything before the announcement of the schedule? If the EC comes up with this excuse it will not be able to register any party afresh within the short time after the announcement of the schedule. Even if the party is registered, its leaders will miss the election as they will not be able to nominate candidates. This will violate the constitutional rights of the people who applied for registration of their party to contest the election.
By expressing the EC's inability on Sunday to make any intervention before the announcement of the election schedule, the CEC seems to have overlooked all those legal provisions discussed above.
He seems to have focused only on the electoral code of conduct for the political parties and the contesting candidates. This code of conduct comes into force only after the announcement of the election schedule. It specifies some dos and don'ts for the contesting parties and candidates during their electioneering. Nothing more than that.
CEC Nurul Huda's remarks neither reflect the reality on the ground nor do they align with the EC's official statement tagged with its roadmap document made public on Sunday.
It said political parties have started preparatory work ahead of the desired election. The people of this country are waiting for a credible election. “It can certainly be said that a congenial atmosphere has been created for the national election,” said the EC in the document.
The EC document also said that people's expectations include ensuring a level playing field for all political parties, participatory election and proper enforcement of electoral laws.
But what happened to some registered political parties' top leaders just three days before the announcement of the electoral roadmap undermined the EC's good words and claims made in the roadmap document.
On Thursday night, law enforcers obstructed several registered political parties' leaders from holding a meeting at Jatiya Samajtantrik Dal (Rab) President ASM Abdur Rab's Uttara residence.
This incident holds no importance for CEC Nurul Huda who expressed the EC's inability to intervene in such a situation before the announcement of the schedule.
The Constitution empowers the EC to do anything and everything for the sake of ensuring a free and fair election. And a free political atmosphere is a must for a credible election.
How will the EC ensure a “level playing field” after the announcement of the schedule if round the year opposition parties are not allowed to freely function in line with their legal rights?
CEC Huda took the helm of the EC at a time when people's confidence in the constitutional body was on the wane largely because of the numerous controversial elections in the last five years. He will have to work hard to bring back people's confidence in the EC that he has been leading since February.
For this, he must rise to the occasion to uphold the dignity of the high office.
Shakhawat Liton is special correspondent, The Daily Star. E-mail: firstname.lastname@example.org