Commission of courage

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In a piece written in 1995, Fan Yew Teng challenges the Election Commission chief to emulate the trail-blazing success of his courageous and independent-minded Indian counterpart.

The Chief Election Commission of India, TN Seshan has been making waves as he stands up bravely to both ruling and opposition party policians in a bid to ensure free and fair elections in that country.

In so doing, he has reinforced beyond doubt the independence and credibility of India’s Election Commission.

General Elections the world over are becoming increasingly expensive affairs. According to the Deputy Chairman of the Election Commission of Malaysia, Datuk Omar Hashim, the Election Commission has been allocated RM40 million to conduct the 1995 general election. This sum is double the amount allocated for the previous general election held in 1990.

More important than the question of money is of course the assurance that elections are always conducted in a free and fair manner for all concerned – the voters and the contesting candidates. Winning or losing in a free and fair manner is what parliamentary democracy is all about.

Granted the Election Commission has successfully conducted general elections since 1955 both at state and federal levels every four or five years. The Commission’s competence and professionalism in conducting general elections and by-elections can hardly be questioned.

Be that as it may, elections must not only be free and fair, but must be seen to be free and fair. and it is in this respect that a nagging feeling persists among a substantial number of Malaysians that the Election Commission has not been assertive enough to ensure that most things which matter in an election are fair.

One persistent complaint — espcially among opposition parties and candidates — is the unfair access to the mass media during an election campaign. This is not to forget the equally frustrating experience of unfair media access before the campaign. This was in fact one of the main issues commented upon by the Commonwealth Observer Team during the 1990 general election.

Another bone of contention that has been a cause of considerable unhappiness among opposition candidates is the way postal voting is conducted, particularly among members of the police and armed forces.

Independence

Ironically and sadly, most of the time the Election Commission itself, and most of our lawyers, parliamentarians and politicians are unaware that Part VIII of the Federal Constitution provides for the independence of the Election Commission. Article 113 empowers the Election Commission to conduct elections to the House of Representatives (Dewan Rakyat) and the State Legislative Assemblies. The Election Commission is also empowered to prepare and revise electoral rolls for such elections, and to review the division of the Federation and the States into constituencies and recommend such changes therein as they may think necessary.

Article 113, Clause (5) states very clearly: “So far as may be necessary for the purpose of its functions under this Article the Election Commission may make rules, but any such rules shall have effect subject to the provisions of federal law.” In other words, the Election Commission may make rules to ensure that elections are conducted in a free and fair manner.

Article 114 empowers the King to appoint the Election Commission, after consultation with the Conference of Rulers. It is significant to note that Clause (3) of the same Article states that members of the Election Commission — a chairman, a deputy chairman and three other members — “shall not be removed from office except on the like grounds and in the like manner as a judge of the Supreme Court.”

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Clause (2) of Article 114 states: “In appointing members of the Election Commission the Yang di-Pertuan Agong shall have regard to the importance of securing an Election Commission which enjoys public confidence.” This Clause surely enjoins upon the Election Commission to conduct free and fair elections. For if members of the Election Commission do not or cannot conduct free and fair elections, then how can the Commission possibly enjoy public confidence.

Seshan’s example

Thus, the constitutional provisions for a fiercely independent Election Commission are there. Why aren’t they used fully?

Perhaps our Election Commission should learn a thing or two from the Election Commission of India in general and T N Seshan, the Chief Election Commissioner of India, in particular.

Soon after being appointed as the Chief Election Commissioner of India in December 1990, T N Seshan has been embroiled in controversy in his struggle to assert the independence of the Election Commission of India. In the process, he has stood up to politicians both in the government and in the opposition, as well as to some top civil servants and bureaucrats.

In May 1993, for instance, Seshan almost sparked off one of the most serious constitutional crisis in independent India when he threatened to cancel some by-elections due for May 19 and postpone indefinitely the Rajya Sabha (Upper House) elections due later that year.

The controversy had stemmed from what Seshan described as a subversion of his “exclusive disciplinary jurisdiction” over election officials by the State Government “at the behest of political bosses.”

Rejecting the Cabinet Secretary’s and the Attorney-General’s views on the matter, Seshan argued that “neither the President nor the Governor … (or) the Government at the Centre or any State had an iota of authority to question” the Election Commission’s right to requisition any officer for election work.

Seshan’s behaviour at one time prompted many MPs in both the ruling Congress (I) and some opposition parties to demand his impeachment. However, speculations has it that Prime Minister Narasimha Rao had not been able to remove him because former Indian President R Venkataraman had flatly refused to allow Seshan’s removal.

Meanwhile, Seshan cancelled or postponed elections or by-elections in areas where campaigning would obstruct drought relief work or where communal tensions were high. He cancelled the by-election for the Ranipet Assembly constituency in Tamil Nadu, objecting to the development programmes the State Government had announced, on the argument that they would influence the outcome of the poll.

Most autonomous?

Writing in the 4 June 1993 issue of Frontline, a respected fortnightly news magazine from Madras, Praveen Swami argued that the Election Commission of India was “perhaps the most powerful and autonomous body in the administrative apparatus” of the country.

At one time, Seshan decided to ban Home Ministry officials from entering the Election Commission’s office unless they signed the visitors’ register. At another time, he delayed polls in the State of Tripura following charges of intimidation and malpractice by some groups. He attacked alleged Congress (I)-sponsored terrorism against Left Front candidates.

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Seshan insisted that only the Election Commission was empowered to fix the dates for elections, not political parties.

He castigated Bhajan Lal, the Chief Minister of Haryana State, for violating the code of conduct of the Election Commission by inaugurating two public works complexes, well after poll notifications were issued, in an attempt to prop up his (Lal’s) son’s campaign.

On 30 October 1992, Seshan ordered the West Bengal Government to carry out a complete re-enumeration of the electoral rolls in 24 Assembly constituencies, in response to charges that large number of illegal immigrants from Bangladeshi had been listed as voters.

In Bihar, elections in no less than five constituencies were cancelled and the results in three others were countermanded, because of massive rigging and violence. The Election Commission also postponed elections in Punjab due for June 22, 1991.

In these actions, Seshan was backed by the law and the Indian Constitution. Section 58 of the Representation of the People Act, 1951 empowers the Election Commission, on a report by the Returning Officer, to cancel a poll. Article 324 of the Indian Constitution clearly says that “the superintendance, direction and control … the conduct of all elections” shall be vested in the Election Commission.

A legal precedent supports Seshan and the Election Commission. In December 1977, in the case of Mohinder Singh Gill concerning the cancellation of a poll in an entire constituency, the Supreme Court of India ruled that where the election law “is silent, Article 324 is a reservoir of power to act for the avowed purpose of … pushing forward a free and fair election with expedition.”

Identity cards

As the world’s largest democracy India has nearly 600 million voters. But Seshan soon realised that many of them were not properly registered voters. So he insisted that all voters be issued photo identity cards to prevent fraud. And he threatened that he would not hold elections after January 1, 1995 in those States that failed to provide photo identity cards to the voters by the November 30, 1994 deadline.

In November 1994, the Election Commission of India indicted Union Minister for Welfare Sitaram Kesri, Minister for Food Kalpanath Rai, and the ruling Congress (I) party for violating the model code of conduct.

The Commission found Kesri “guilty of not only indulging in an activity calculated to aggravate differences between different castes and communities, but also of appealing to caste and communal feelings for securing votes.” In the case of Kalpanath Rai, the Election Commission pursued the matter following reports in The Times of India giving details of the doubling of sugar allocation to the States of Andhra Pradesh, Karnataka and Tamil Nadu after the poll announcement had already been made.

In a separate incident, the Election Commission got 12 independent candidates in Adhra Pradesh arrested for improper preparation of accounts and non-production of expenditure registers.

Seshan’s Election Commission was largely responsible for the Representation of the People (Amendment) Bill, 1994, which among other things, discourages non-serious candidates; reduces campaigning period to 14 days; provides statutory status to election observers; and gives legal sanction to the model code of conduct. The Bill also seeks to prevent the misuse of official vehicles during the period of campaigning, and to give maximum punishment to violators of the model code of conduct.

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Model code

In the recent elections in some Indian States, Seshan’s code of conduct found wide acceptability amongst the voters, the candidates and the political parties. As one political commentator says, “The major impact of this set of measures has been to curb (at least on the face of it) election expenditure …”

He adds: “To the extent that the law-wielding machinery — in this case the Election Commission — has been able to curb the reckless use of money that in the past was used to influence the voter to the advantage of particular candidates, the new measures have without doubt made the electoral playing field more level.”

According to the same commentator, “Indeed, today it has become politically incorrect to criticise T N Seshan, who is widely perceived as somehow being the author of the model code of conduct during the elections. All candidates and parties, even those who have notorious records in respect of ingnoring election guidelines, lose no opportunity to praise him from public platforms.”

Among other things, the model code of conduct bans the use of government vehicles by any candidate; it also prohibits the offer of free transport to voters on polling day.

Consider this report from Goa: “Right from the day elections were announced, the Wilfred Desouza Government adhered to the code for fear of incurring the Election Commission’s wrath. The Chief Minister and his ministerial colleagues surrendered their official cars, and cancelled their engagements; one Minister, Vinay Kumar Usgaonkar, commuted to his office in the Secretariat on a two-wheeler. So wary was Desouza, who is also the Health Minister, that he declined to approve a contract for the supply of medicines to the Goa Medical College Hospital. And before tenders could be awarded for the undertaking works for the expositon of St Francis Xavier, the clearance of the Election Commission was obtained.”

Perhaps former Indian Prime Minister, V P Singh, best sums up the important democratic achievement when he says: “I think Seshan’s heart is in the right place. He is after all only trying to correct corrupt practices. In his enthusiasm, he does issue some extreme orders, but this does not rob his overall effort of its correctness.”

The pertinent questions for Malaysians is whether their own Election Commission has its heart in the right place. Or, has it decided that timidity is the safer bureaucratic path? Let’s keep our ears and eyes open.

Seshan’s Commandments

Thou shalt not:

  • Bribe or intimidate voters.
  • Distribute liquor during the elections.
  • Use official machinery for campaigning.
  • Appeal to voters’ caste or communal feelings.
  • Use places of worship for campaigns.
  • Use loudspeakers without prior written permission.

Source: India Today, 15 December 1994

The Audit Exercise

The expenditure observers are Seshan’s sentinels.

They are checking:

  • Suppliers/printers of posters: do their orders tally with the candidates’ bills?
  • Numbers of electioneering vehicles: do they match those shown by candidates?
  • Payment receipts of petrol pumps: Have the candidates consumed more petrol than shown?
  • Use of loudspeakers: Are loudspeakers being used only between 6am and 10pm?
  • Video-recording of meetings: do the expenses shown match the visual evidence?

Source: India Today – 15 December 1994

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