Ensure Right to Recall, Rejection: A Constitutional Mandate in South Asia

Map_of_South_Asia_0By Abhiranjan Dixit and Jivesh Jha–

The member states of South Asian Association for Regional Cooperation (SAARC) have an epitome of perseverance and persistence that general will of the people is expressed through the periodic election.

While upholding doctrines of the democracy, the Constitutions of these developing countries are at even to envisage Election Commission (EC), an independent autonomous constitutional body, to superintend, direct and control elections.

Rolling out EC to prepare electoral rolls and conduct polls for legislature, President and Vice President; the statutes rule out any possibility of formation any other apparatus in place of EC to carry out its business.

At a time when the people of South Asian nations are deeply offended at the hands of their impotent leaders, a section of society raises eyebrows against the non-stringent laws prevailing in the region. Let’s look into the arrangement of provisions related to election in the Constitutions of these states with a view to analyze whether the claim of the people are misplaced or not.

The Constitution of India, the eldest charter in South Asia, opines that the EC performs the function of superintendence, direction, control of preparation of electoral rolls, and also conduct the elections of parliament, state legislature, and to the offices of President and Vice-President, Article 324 (1). While sharing similar views, the other countries also impose an obligation on EC to conduct the polls of different political posts.

Amid scripting essential qualifications for exercising right to vote, the Constitutions unanimously express that any citizen of not less than 18, registered in electoral rolls, and not otherwise disqualified by any law for the time being in force would be eligible to cast his/her vote during elections.

However, regarding fielding the posts of EC, the Indian Constitution confers power on President to appoint Chief Election Commissioner, who will act as the Chairman as of EC, and other Election commissioners, Article 324(2). The President of India also appoints Regional Commissioners to assist the functions of the EC in holding the polls to House of People and Legislative Assembly of various provinces, Article 324(4).

While conferring power to the President or the Governor of the State to remove Election Commissioners or a Regional Commissioners on the report of Chief Election Commissioner, the statute makes dissimilar provisions for the elimination of Chief Election Commissioner. The removal procedure of the Chief Election Commissioners and judges of Supreme Court (SC) stands on similar footing, Article 324(5). Noted, a judge of SC is removed from office by impeachment supported by either of House of parliament—Lok Sabha and Rajya Sabha—with a clear majority of two-third of members of the House present and voting in the same session, Article 124(4).

In a bid to curtail the tale of predominance of Center, the charter empowers State Legislature to make provisions with respect to all matters in connection with polls of provincial legislature including preparation of electoral rolls, Article 328. Meanwhile, in case of insufficient staffs, the EC can demand necessary staffs from the Center and State governments to discharge its functions smoothly.

While talking about the delineation of electoral constituencies, the parliament holds an absolute say, Article 327 & A-328. However, putting a restriction, the succeeding provision—Article 329—begins with a non-obstinate clause which expressly bars any lawsuit against the delineation of electoral constituencies or allotment of seats to such constituencies.

When asked what made the parliament to formulate such laws, faculty of International Law Alok Kumar Yadav, who is associated with HNB Garhwal Central University, said, “There is no question of no to lawsuit when the parliament-made statute has expressly confirmed yes to constituency delimitation on the basis of density of population.” As the periodic election is conducted to ensure the will of people, “The population has been taken single basis for constituency demarcation.” He further added, “The claim attains validity when we observe the fact that one Lok Sabha seat each is given to the states of Mizorm, Nagaland, Pondichery and Sikkim—which are less populated against the other states.”

The provisions related to Elections have been embodies under Article 324 to 329 of the Constitution of India.

In contrast, the Constitution of Nepal, the newest document of the world, which was unveiled last year on September 20, provisions that ‘geography and population’ both will be taken into account while delineating the electoral Constituencies, Article 84(1).

In its Article 84 (1) (a), the Constitution provides that ‘there shall be as many as 165-member House of Representatives’. Further, the members are supposed to be directly elected from 165 constituencies.

The Madhesh region, the southern plains of the country, is the shelter of more than half of the national population. The Madheshi parties and indigenous parties, who were reluctant to bestow the stamp of approval to the new constitution, are showing reservation to the provisions that set aside only 62 constituencies for Madhesh out of a total of 165 seats under the first past the post system, instead of 83.

The charter envisions that the EC will consist of Chief Election Commissioner and four other Election Commissioners appointed by President on the recommendation of Constitutional Council.

The tenure for the commissioners so appointed has been slated for six years from the date of appointment. However, one may be retired from the office after attaining the age of 65 years or completing tenure of six years, whichever is earlier. The statute bars the same person for reappointment as Election Commissioners or Chief of Election Commissioner.

Unlike, India, the statute provisions for impeachment for the removal of the commissioners and Chief of the Election Commissioners from the office on violation of professional duties.

Although the Constitution of India remains silent to mention express qualifications for commissioners, the Nepali statute envisages that any person holding Bachelors degree, attained the age of 45 and not being member of any political party and of high moral character can be appointed as commissioner.

Like other Constitutions, the statute confirms that the remuneration given the commissioners would not be reduced, Article 245(7).

Further, the person who has been a commissioner and Chief Election Commissioner will not be eligible to be appointed in other government services, Article 245(8).

While describing the functions of the EC, the charter provisions that EC will ‘hold referendum on subject of national importance as per this Constitution and Federal laws,’Article-246(2). Similarly, in case of any dispute arisen over the candidacy, “final decision thereon shall be made by the Election Commission,” commands Article 246(3).

Adjusting a similar tuning with India, the statute empowers the EC to seek necessary employees and other cooperation from the Government of Nepal, provincial government and local government to perform the functions, Article 247. However, the other functions are in consonance with other Constitutions, including India’s.

The provisions related to Election Commission have been incorporated under Article 245-247 of Constitution of Nepal.

Asserting that the general will of the people is expressed through periodic elections, the Bhutanese Constitution provides that ‘a candidate of elective office must be a registered voter of that constituency’, Article 23(3)(b).

Coming down heavily against the notion that there should not be maximum age limit for standing in an election, the Bhutanese statute sets maximum age of 65 years for filling nomination while making minimum age for the same at 25 years, Article 23(3)(c). Confident of giving a befitting reply, the charter slams any form of monetary assistance earned by candidates of any poll, Article 23(3)(d).

Exploring another sparkling feature, the succeeding clause provides that a person standing in election should meet the educational qualifications as well. However, the well accepted tradition in Bhutan is that the nominee of parliamentary election must be a graduate from a recognized university. The other qualifications, including adult suffrage and nationality, stand on similar footing with other countries.

In contrast, marrying with a foreign national could cost you dearly if you have an ambition to represent the people in Bhutan. The charter bars a person who has developed courtship with a foreign national to contest any elections, Article 23(4)(a).

Like other statutes, the fundamental document of Bhutan also corroborates that a person would be disqualified to fill his candidature when he has been disqualified by law in force, holding any office of profit, convicted in any criminal offence and sentenced to imprisonment, and his head crammed with arrears of taxes.

In a bid to ensure that the voters have been informed about their candidates, the statute makes an obligation on the leaders to make an affidavit revealing educational qualification, income and assets, if any record of criminal convictions or case pending before court of law, and also one needs to reveal his marital status and information regarding his issues, Article 23(6). Similarly, it’s been left at the will of parliament to make laws for election campaigning and resolving any disputes arisen over anyone’s candidature, Article 23(7).

While explaining the composition of EC, the statute provides the body will consist of two Election Commissioners and headed by Chief Election Commissioner, Article 24(1). However, the appointments are made by His Majesty the King from a list jointly presented before him by Prime Minister, Chief Justice of Bhutan, the Speaker, chairperson of the National Council and the Leader of the Opposition Party.

Unlike Nepal, the term of Election Commissioners and Chief Election Commissioners will be five years or until they attain the age of 65 years, whichever is earlier, Article 24(3).

Scripting a dissimilar provision, the Bhutanese document makes EC a responsible authority to delineate the electoral constituencies—be it for parliamentary election or of local bodies’, Article 24(4).

In an another sparkling feature, “Parliament shall, by law, ensure that the Election Commission holds elections so that the National Assembly and Local Governments are re-constituted within ninety days after its dissolution. Provided that in the case of the National Council, elections shall be held so that it is re-constituted on the date of expiry of the term,” reads Article 24(5). Similarly, in case of local bodies’ election, its been provisioned that election must be held within 90 days from the date of its’ dissolution.

The last provision commands that the EC has to carry out its functions in the line with electoral laws. Nonetheless, the other functions of the EC find similarity with other Constitution.

The provisions related to Election have been discussed under Article 23-24 of Bhutanese Constitution.

While making a similar adjustment with other South Asian countries, the Maldivian Constitution provisions that the “EC will consist of at least five members including the Chairman of the Commission.” Similarly, the President is empowered to appoint those persons in the office whose names have been approved by the majority of Parliament, i.e. Lower House, Article 168.

However, a person competent to discharge the function and who holds minimum educational qualification has been made eligible to be appointed as Commissioner of EC, Article 169.

Like others, the Maldivian charter also confers power in the hand of EC to hold polls, make announcements of the names of persons coming victorious from different constituencies, register political parties and among others.

Sharing a similar berth, the charters of Bhutan and Maldives empower High Court to entertain the petitions challenging anyone’s candidature of polls. However, the Bhutanese Constitution provisions that the parliament by law will decide the cases challenging anyone’s victory from any constituency.

Similarly, the statute commands that a member of EC will be appointed for a term of five years. Unlike Nepal, the same person can be re-elected as Commissioner for following time. However, the same person is barred to hold the office more than two terms, Article 173.

Unlike India, the removal of Commissioners, including Chief Election Commissioner, is made by the method of impeachment laid down in House of parliament.

The provisions related election has been allowed to find space under Article 167-178 of Maldivian Constitution.

Like India, the Bangladeshi Constitution provides that the Election Commissioners and Chief Election Commissioners will be appointed by the President and the said of body of EC will be headed Chief Election Commissioners. The charter envisages that the term of office of Commissioner will be five years from the date on which he enters upon his office, Article 118(3).

Sharing similarity with other charters, the statute confirms that on violation of his professional conduct, an Election Commissioner can be removed by impeachment and on the like ground as of judge of SC, Article 118(5). However, like India, the Commissioners so appointed are provisioned to resign his office by writing under his hand addressed to President.

Like Nepal, the person who has been in the office of Election Commissioner is disqualified to hold any government office of Bangladesh. In an exception to this rule, any other election Commissioner shall, on ceasing to hold office as such, be eligible for appointment as Chief Election Commissioner, reads Article 118(3)(b). Further, its been provisioned that the EC will be an independent body.

The functions of EC have been incorporated in the similar vein as of other charters.

Unlike others, the President fills the number of staffs in the line with the request made by the EC, Article 120. Moreover, the provision of single electoral roll for each constituency stands on similar footing with other charters.

While laying down the qualifications of electorate, the statute makes any Bangladeshi national of 18 eligible to cast votes while bars unsound mind persons and the one who has been disqualified by law to exercise the same civil right, Article 122.

As of India, the statute vests power on parliament to make any provision related election, including preparation of electoral rolls and constituency delineation, A-124.

Sharing a similar verse as of Bhutan, a General Election of Members of Parliament shall be held within ninety days after Parliament is dissolved, says A-123(3). However, in case of vacancy of President Office caused by unnatural death or otherwise, the election to it will also be held within 90 days.

However, “In the case of a vacancy in the office of President occurring by reason of the expiration of his term of office an election to fill the vacancy shall be held within the period of ninety to sixty days prior to the date of expiration of the term. Provided that if the term expires before the dissolution of the Parliament by members of which he was elected the election to fill the vacancy shall not be held until after the next general election of members of Parliament, but shall be held within thirty days after the first sitting of Parliament following such general election,” Article 123(1).

Scripting a similar provision like India, the Bangladeshi statute also envisions that the provisions related to delineation of electoral constituencies and the entire procedures related to election will not be questioned in any court of law, Article 125.

Like others, the statute commands the executive authorities to assist the EC in discharging its functions, Article 126.

The provisions related to election have been discussed under Article 118-126 of Bangladeshi Constitution.

On the contrary, the Pakistan Constitution provides that a person who has been judge of High Court (HC) or SC, or meets the qualifications for being appointed as judge of HC or SC will be eligible candidate for being appointed as Election Commissioner, Article 213(2).

Although the statute commands that the Election Commissioners will be appointed by President in consultation with Prime Minister, it provides room for opposition’s voice as well in appointment process. Of three names submitted by the by Prime Minister in consultation with leader of opposition, one person gets appointed as Commissioners on confirmation of Parliamentary committee. However, in case of non-consensus, the Treasury Benches and Opposition parties both will separately forwards the names of persons to Parliamentary Committee for confirmation of one, A-231(2B). And, this makes Pakistan stand on a different footing in South Asia.

The Parliamentary Committee, which is not supposed to exceed 12 members, will be constituted by Speaker and there will be 50% of members each from Treasury Benches and Opposition parties based on their strength in parliament.

Nonetheless, the Senate (Upper House) has been empowered to constitute the Parliamentary Committee in case where the National Assembly is dissolved.

Further, the Commissioners take the oath of office before the Chief Justice of Pakistan while resign by writing under his hand addressed to President.

Meanwhile, in case of vacancy of Commissioner’s office, a judge of SC nominated by the Chief Justice of Pakistan will act as acting commissioner of the EC.

Regarding the composition of the EC, the statute envisages that it will be a five-member body, headed by the Chief Election Commissioner, Article 218(2).

Apart from holding elections to National Assembly and Provincial Assembly, the Election Commission is empowered to constitute Election Tribunal as well, A-219(c). The charter commands the executive authorities of province and Union to assist the EC in discharging its’ functions. Furthermore, the EC is also empowered to makes rules for its servants and employees in consultation with the President.

Like Bhutan, the charter empowers the EC to delineate the electoral constituencies. Further, unlike Bhutan and Maldives, the EC is also empowered to settle disputes relating to elections.

While favoring the timely polls, the statute commands that the election to the National Assembly or Provincial Assembly will be held within 60 days of its’ expiration, Article 224(1). However, the result of the poll is provisioned to be made public within 14 days of the election.

Moreover, the President or Governor, as the case may be, will appoint the care taker government on dissolution of National Assembly or provincial Assembly.

As there is a well-settled principle that the President always acts on aid and advice of Central Cabinet headed by Prime Minister, it’s been provisioned that when the National Assembly is dissolved, the President will appoint a care-taker PM in consultation with the PM and the leader of opposition in outgoing National Assembly. Similarly, when the Provincial Assembly is dissolved, the Governor will consult the Chief Minister of the State concerned and Leader of Opposition in outgoing Provincial Assembly while appointing the care-taker Chief Minister.

Its been further provisioned that the members of Federal (Central) government and Provincial (State) government will be appointed on the advice of care-taker PM or care-taker CM, as the case may be.

Placing a bar, the statute forbids the members of care-taker government—be it at center or state—and their spouses and children to contest the immediately following elections to such Assemblies.

Further, at the event of dissolution of National Assembly or Provincial Assembly, a general election to such Assembly will be held within 90 days after its dissolution and result of it is provisioned to be displayed within 14 days.

However, when a seat of Senate (Upper House) becomes vacant on expiration of term of members, the election to fill the seat will be held within 30 days from the date of vacancy occurs.

Further, in case where a general seat of National Assembly or Provincial Assembly becomes vacant at a time when the respective Assembly is to expire within 120 days, the fresh poll to fill the seat will be held within 60 days of the vacancy of seat. Similarly, in case where a seat becomes vacant in Senate, election to fill the seat will be held within 30 days from the date of occurrence of vacancy.

Similarly, when a reserved seat of women or non-Muslim becomes vacant on account of his/her death or resignation or disqualification, as the case may be, it will be filled by the next person in order of precedence from the party list of candidates submitted to the EC by the political party whose member has vacated such seat.

In addition, Article 225 says that the grievances related to election will be entertained by Election Tribunal, while bars a person to move the court regarding the election of National or provincial Assembly.

While confirming the international norms, the statute provides that all the elections other than those of PM or CM, will be by secret ballot, Article 226.

The provisions relating to Elections have been embodied within the ambit of Article 213-226 in Pakistani Constitution.

Like other South Asian Constitutions, the Sri Lankan charter also provides the similar qualification for voters. However, being specific, the fundamental document provides disqualification for 3-7 years on commission of various offences.

While bringing a sparkling feature, the statute bars the same person to contest the election from more than one electoral district in a General Election. Like other statutes, the charter bars a government servant or the persons holding the office of profit to fight the election.

However, any citizen is entitled to be elected as President unless he has been removed from the President office and has held the office for twice. The minimum age for becoming a President has been preset at 35.

While forwarding the provisions for Election of President, the Article 94 reads as “(1) At the election of the President every voter while casting his vote for any candidate may –

(a) where there are three candidates for election, specify his second preference; and

(b) where there are more than three candidates for election, specify his second and third preferences.

(2) The candidate, if any, who receives more than one-half of the valid votes cast shall be declared elected as President.

(3) Where no candidate is declared elected under paragraph (2) of this Article, the candidate or candidates, other than the candidates who received the highest and second highest number of such votes, shall be eliminated from the contest, and –

(a)      the second preference of each voter whose vote had been for a candidate eliminated from the contest, shall, if it is for one or the other of the remaining two candidates, be counted as a vote for such candidate and be added to the votes counted in his favour under paragraph (2) ; and

(b)      (b) the third preference of each voter referred to in sub-paragraph (a) whose second preference is not counted under that sub paragraph shall, if it is for one or the other of the remaining two candidates, be counted as a vote for such candidate and be added to the votes counted in his favour under sub-paragraph (a) and paragraph (2), and the candidate who receives the majority of the votes so counted shall be declared elected as President.

(4) Where an equality is found to exist between the votes received by two or more candidates and the addition of one vote would determine –

(a)      which candidate is to be declared elected under this Article ; or

(b)      which candidate is not to be eliminated under this Article,

then the determination of the candidate to whom such additional vote shall be deemed to have been given for the purpose of such determination shall be made by lot.”

Further, the number of electoral constituencies stands at 196. The General Election picks 196 leaders from the constituencies. In addition to it, 29 seats are filled through proportional representation among the recognized political parties’ in the same proportion as the proportion to which the number of votes polled by each such party. The delineation of electoral constituencies is based on population size and is decided by Delineation Commission of which members are appointed by President.

Like Nepal, “every recognized political party or independent group contesting a General Election shall submit to the Commissioner of Elections within the nomination period specified for such election a list of persons qualified to be elected as Members of Parliament, from which it may nominate persons to fill the seats, if any, which such party or group will be entitled to, on such apportionment. The Commissioner of Elections shall cause every list submitted to him under this Article to be published forthwith in the Gazette and in one Sinhala, Tamil and English newspaper upon the expiry of the nomination period,” Article 99.

Further, if any person disqualified to contest the election fights the poll and coincidently comes victorious, he will be fined 500 Rupees for every day upon which he so sits or votes in parliament. And, the case of his disqualification will be instituted by the Attorney-General in the District Court of Colombo.

On a separate context, “When a public officer or an officer of a public corporation is a candidate at any election, he shall be deemed to be on leave from the date on which he stands nominated as a candidate until the conclusion of the election. Such a public officer or an officer of a public corporation shall not during such period exercise, perform or discharge any of the powers, duties or functions of his office,” reads Article 102.

While exploring the object of EC is to conduct a free and fair election and referenda, the statute envisages a 3-member Commission appointed by President on the recommendation of the Constitutional Council. And, the members would be from amongst persons who have distinguished themselves in any profession or in the fields of administration or education. One of the members so appointed will be a retired officer of the Department of Elections, who has held the office as a Deputy Commissioner of Elections or above. The President on the recommendation of the Constitutional Council appoints one member as the Chairman of the EC.

Like Pakistan, the Commissioners hold the office for a term of five years from the day he enters upon his office. Similarly, like Pakistan and India, the Commissioners can be removed by resolution of impeachment passed by the House with two-third majority.

The functions of the EC remain similar to that of India, Nepal and among others.

The Sri Lankan statute envisages that army personnel can be deployed at the request EC for holding a fair election or referendum, Article 104D.

Further, its been provisioned the EC will appoint Commissioner-General of Elections on approval of Constitutional Council and the function of the said appointed authority is to: Implement the decisions of the Commission and exercise supervision over the officers of the Commission. However, the power of the General may be delegated.

Moreover, like other countries, the charter provisions for the appointment of ‘Returning Officer’ to each electoral district, Article 104F.

In a distinctive approach, the Supreme Court of Sri Lanka is empowered to issue writs against the EC. However, the petition regarding election should be served before the SC within a month of occurrence of the poll and its been further provisioned that the SC has to dispose of the application within two months of the filling of the same, Article 104H.

The provisions relating to Election have been discussed under Article 88-Article 104J. Similarly, the provisions relating to referendum have been embodied under Article 85-87.

While talking about the similar provisions in South Asia, the functions of EC is alike. Moreover, the federal democratic countries, save for Nepal, empower state (province) to play an instrumental role in formulating the rules and holding the timely polls at provincial level.

In a bid to set aside the animosities set by the erstwhile unitary system, the Nepali people dreamed of making the country a federal republic. But, the constitutional provision envisioned under Article 56(4) & (5) annoyed many, where its’ envisaged that the centre will have an extraordinary influence in determining the laws for local bodies’ election. The new statute ensures no room for the provinces to set the norms for local bodies’ election.

Although there has been a popular practice to incorporate the provisions related to Election in Constitution, the Afghani Constitution remained indifferent to accommodate any chapter relating to Elections.

“It’s not a healthy symptom. It indicates that Afghanistan is little serious about democratic election, and the popular democracy,” further said professor Yadav.

However, it’s quick to bestow that right to elect and be elected is one of the Fundamental Rights, Article 33.

From the above discussion, one thing becomes clear that the stringent laws are yet to be introduced in South Asia that could ensure the cancellation of seats of those leaders who have failed to stand by their words. Similarly, the EC has not been empowered to entertain petitions of desperate electorates. Moreover, the constitutional body is yet to give a big blow to the deep-seated political patronages given to offenders.

However, its advisable that the South Asian countries should script laws relating to right to recall and right of rejection at a time when the delinquent persons are making fortunes under the garb of politics.

On witnessing that their leaders have failed to walk the talk, and the tall promises of how their constituency will be transformed into a dream city in foreseeable future gets punctuated by mudslinging, character assassination, allegation and counter allegations, and bribery, and unabated violence against women and children; then of course the dreams of many begun into sour. And, the people in the state start speaking: Wish these leaders were in the past. Though the people in the state cannot speak of these leaders in the past tense, they start glaring impatiently with uneasy eyes at those tainted figures. So, there should be a clear provision in election laws that the electorates hold power to recall their elected leader at any given moment, while ensuring his replacement by the new face.

As we are living in a region where the legs of a person are already in grave, yet his heart is still impatient of holding a post, the law should be formulated in a fashion that succeeds to come down heavily against such types of voracious persons.

Further, such type of legislation should be made that strictly commands: A person must get certain percentage of votes out of total to become a leader of respective electoral constituency.

Meanwhile, like Bhutan and Pakistan, the other SAARC states should make a provision that the leaders running for the General election—be it for Center or province—must hold a minimum qualification of Bachelor’s degree.

In conclusion, the statutes should be made applicable in both letter and spirits in such a way that the people would no more remain a silent onlooker who could just stand and watch the annoying scenes of their leaders. And, the SAARC states should ensure that they are pledged to not to water the political criminals.

(Mr. Dixit is a faculty of International Law at Uttranchal University, Dehradun and Mr. Jha is a contributing writer for the Nepal Foreign Affairs)

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Published on: May 22, 2016






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