The 'Representation of the People (Amendment) Bill, 2023' was passed in Parliament on Tuesday with the key amendment authorising the Election Commission to postpone or cancel the results or voting of one or more than one polling stations in any number of constituencies on polling day, but not 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 Election 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.

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But there is no provision of cancelling the entire election to a constituency in the proposed law- as happened during the Gaibandha-5 by-election last October.

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 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.

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After that paragraph, a new paragraph is included 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.”

The issue of punishing the offenders in hampering the media from performing their “lawful” duty during the election is also in the new provision.

The amended RPO also includes a new paragraph 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.”

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In another major 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.

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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 responds to 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?”

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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 that the electoral system has been destroyed during the current government in such a way that people are now averse to voting.  

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“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 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’.

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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’smindset. 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 a constituency. Previously, if there was any violence or irregularity in 3/4 polling centres, the election of all polling centres can 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 the fault of the Awami League government is.”