EC's control over employees and general administration
Tuesday, 17 July 2007
Masihur Rahman in the second of a three-part article
THE distinction between the Election Commission and its Secretariat and to treat the latter as another Division or Ministry is wrong. The fact that the government appoints Secretary to the Commission has generated this flawed perception. The misperception could be avoided if the government 'deputed' officers instead of posting them. An easy solution to the problem has been resisted because of administrative obscurantism.
The model for separation and independence of the Commission Secretariat is available. The Registrar provides support for administration of the Supreme Court and has the financial powers of a Secretary (since late 1990s) which earlier had been exercised by the Law Secretary. Parliament and the Public Service Commission have separate secretariats, though they may take officers on deputation from the government. It took time to persuade the bureaucracy that the model is in conformity with the principles of the financial rules and control.
It has been argued that the Election Commission must have full control over its officers including recruitment, promotion, disciplinary action, and appointment of the officers to the Commission Secretariat. While the argument has force, there are pitfalls also. The separate non-specialist cadre will be very small with an extended base of the pyramid and an extremely narrow top. Cadres so structured offer extremely narrow promotion prospect and cannot attract good candidates.
Further, if the officers are recruited separately and not as part of the BCS cadres, the opportunity for lateral movement (upward as well) into the wider administrative positions (civil secretariat, corporations) will be absent. On the other hand, recruitment as part of the combined civil service cadres also has risk: the Election cadre officers will use the initial appointment as a launching pad for getting into better positions in the government, and court favour with the political leaders or senior officers who can dispense favour. This will cause migration from the cadre and threaten integrity (i.e. neutrality).
There is no best solution - only second best solution. First, the election officers may be recruited as part of the combined civil service cadres; secondly, at mid and senior level (deputy & joint secretary) there may be opportunity for irreversible lateral movement out of or into the Election cadre; third, the Commission will have the exclusive control over inter-cadre migration. This also determines that recruitment will be made through the Public Service Commission. PSC is expected to function competently and honestly, not corrupted by partisan inclinations or private egotism.
A much more complex issue is the Election Commission's control over the general administration (magistrates, police & other disciplined forces) that plays the most important role in conducting election). These officers act as Returning Officers / Assistant Returning Officers and maintain law and order during election. Unless they are completely neutral and can effectively resist extraneous pressure, elections cannot be fair.
The Election Commission can deal with the failure of the general administration in two ways. First, it must cancel the election wherever things go wrong; second, those who interfere with election must be punished. More importantly, the candidate who is responsible for manipulation also should be punished, including ineligibility for contesting election for a period. Since ineligibility for election denies a valuable political right, only Courts under ordinary law should have the jurisdiction for such cases, not the Election Commission ever. Neutrality of the general administration and the disciplined forces will remain problematic until the members attain a high level of integrity and stop playing actively the game of rent-seeking distributive coalition.
The Election Commission should investigate and award punishment to the officers of civil administration and the armed services for offence against election law. The Commission may be granted the powers of the appointing authority which can take action under disciplinary rules and may recommend trial by court. Alternatively, the competent authority may take action and award as recommended by and satisfactory to the Election Commission. No officer or staff member should return to his / her organization and resume duty until the complaints have been disposed of to the satisfaction of the Commission.
The Commission may publish a report in two or more stages of the complaints received and disposed of. The first report shall cover the complaints received and actions initiated; the second and subsequent reports shall cover the disposal of the complaints stating the punishments awarded or acquittal. The first report should be published not later than six months after the election; the subsequent reports should be published every six months until the final consolidated report is made publicly available.
The Election Commission may institute public enquiry into each general election and publish the report. The committee for public enquiry should be constituted well in advance so that it can observe the election process from the very start. Any effort to institute public enquiry after the election will generate controversy as the winners and losers will pull in opposite directions. Public enquiry acts as a quality assurance audit. Currently, the local and foreign observers issue quality assurance of sorts.
The Election Commission is better off instituting its own quality assurance procedures, and not to abdicate to NGOs.
Public enquiry and the reports are instruments of public accountability. The formal accountability rules for the independent commissions / institutions are too complex to be invoked easily. They may install rules for accountability that commences before and runs concurrently with performance which, many analysts maintain, is active responsibility distinguished from ex-post audit. [Mark Bovens, The Quest for Responsibility, 1998, pp.32-42]
Financial independence and accountability: The Constitution already grants the most important budgetary independence to the Election Commission: the Commissioners and all administrative expenses of the Commission are entitled to charged expenditure in the budget. The demand for charged expenditures is not subject to vote; there is no bar to debate the performance of the agency, however. [Article 87 & 88]
The Speaker's Committee of UK provides a model also for the Commission's financial independence, while ensuring conformity with the government's policy for public expenditure issued by the Treasury. The Speaker's Committee receives and scrutinizes the estimates prepared by the Election Commission. The estimates are made in accordance with the Treasury's instructions for spending public money. The Speaker's Committee can seek changes by the Commission, coordinates with the Treasury, and resolves the differences between the Treasury and the Commission -- i.e. the Treasury does not sit in judgment over the Election Commission.
Like the Secretary of a ministry, the Secretary of the Election Commission may be made the Principal Accounting Officer, who is responsible to ensure that the expenditure conforms to the rules and the purposes for which Parliament made the grants. The function of PAO has to do more with oversight on what his subordinates do and less with assuming direct power to spend, which leads to dysfunctional centralization.
The heads of the departments are the controlling authority for the budget of their respective department - e.g. Chief Engineers of PWD, PHED, R & HD, Health Directorate. They are responsible for compliance of expenditure with the rules and the purpose for which the legislature made the grants. They exercise financial powers delegated to them which are obsolete and too niggardly. The rules allow much wider financial delegation to the departments - in fact all the powers of the ministry can be delegated to the heads of departments and project directors.
It is argued that the Election Commission needs to be attached with a ministry because a minister has to move the demand for grants in Parliament.
The Speaker's Committee dispenses with the need for a minister just for this purpose. However, until such a Committee is instituted, a minister has to perform this task. The Prime Minister is the worst choice, for some other minister stands for the budget of PMO.
It is wrongly argued that the Election Commission (any independent agency as well) could be truly independent in financial matters if it were allowed to retain the fees and fines it collects, and were not to depend on government budget. The argument distorts the principles of public finance and the motives for exercising regulative and punitive powers. Free and effective exercise of franchise is the supreme public good in democracy, which should be supplied adequately at government cost. Enough resources will be released by containing corruption as well as unproductive expenditure. (IMF & SNA 1993 provide definitions.)
As to the motivational distortions, the Commission will act rationally imposing the maximum fine which makes it better off while sparing imprisonment. The offenders would prowl freely in society and be a perpetual threat to fair elections!
Broader accountability: Financial independence is often interpreted as immunity from the estimates and the rules imposed by the government. The Finance Division performs this task for the government. No agency which spends public money can refuse the fiscal discipline and accountability imposed by rule: that amounts to fiscal anarchy, not independence.
The Commission Secretary qua PAO has to appear before the Public Accounts Committee, even though the irregularities were committed by an Election Commissioner or a subordinate officer.
PAO can be faulted for not exercising adequate oversight, while the Commissioner and the officer concerned shall be responsible for the irregular or unlawful expenditure. It is indeed difficult to rein in a wayward superior!
The questions regarding performance of the Election Commission may be referred to the Speaker's Committee which, after enquiry to determine the facts, would make communication with Parliament. In case the Speaker's Committee and / or Parliament consider(s) further action necessary, it may ask the President to initiate SJC proceedings against one or more Election Commissioners, or by resolution initiate public enquiry into the Commission as a body.
Parliament may establish the rules for public enquiry in advance and avoid ad hoc decisions as the case arises. Further, Parliamentary Committee for enquiry into independent Commissions and agencies should be broad based and reflect the weight of popular votes rather than membership in Parliament, which corrects vote-seat discrepancy. There should be provision for public hearing and consulting expert opinion. Enquiry of this nature should aim institutional enhancement, not finding faults only. (Certain other measures of administrative accountability have been discussed above.)
Technology no safeguard against dishonest administration: The Election Commission has announced successful completion of the Sripur pilot for preparation of electoral roll. The major - the only hypothesis perhaps -- tested by the experiment is the use of computer (laptop) to prepare electoral roll with voter's photograph. A number of other steps involved in election process have not been tested, or the results are yet to be made public.
The following critical steps precede publication of the voters list: verification of ten percent of the initial registration of voters by house-to-house visit; disposal of objections to the published draft roll by the officers appointed for the purpose; correcting the voters' register by entering the changes decided by the appellate officer. The voters list is not eligible for publication until these steps are completed. It is not clear if these steps have been completed; if these steps had been left out, the design was flawed.
A random stratified sample should be used for verification of 10% voters initially registered. The verification is usually neglected or done perfunctorily based on common sense (e.g. check the first 10% houses as you walk in the area). The National Democratic Institute (NDI) used statistical procedures which detected the excess and flawed registration. Brotee, a local NGO, prepared a parallel electoral roll, which is not feasible or efficient as a statistical audit tool.
The ultimate test of a reliable electoral roll is the extent to which it can effectively control false vote casting and ballot box staffing - the two methods for falsification of election results. There are more gross methods also such as obstruction to voters and intimidation before and after election. The pilot did not test how photographs can contain the strategies for election rigging - it is not possible except in a real election. A wide gap occurs between experiment in controlled laboratory conditions and field application in a normal environment.
Certain steps are necessary to make computerized electoral roll with photograph fool-proof. First, the photographs are to be saved in the computer and protected by security. This would require use of laptops / PCs in the polling booths, raise the number of computers and operators by large multiples yet to be calculated by the Commission, reliable supply of electricity at all polling booths or computer batteries with long life (16-20 hours), and computer trouble shooters for polling centres grouped together on the basis of proximity and ease of transportation.
Second, it should be ensured that the voters lists are printed on good quality papers so that the photographs are clear and ordinary printing presses cannot make copies. Unless these measures are taken, the electoral roll with photographs may not secure much advantage. These would raise cost further and may encounter binding constraints, particularly shortage of skill and utility supply.
Third, ID cards have security thread which provides strong check against impersonation. ID cards, however, will not be used for election. Besides, electoral roll with voter ID cards takes much longer to prepare than the time frame for election (2008) allows and magnifies the constraints.
Finally, the electoral roll prepared with the best technology in the world and printed on the best quality paper do not prevent false casting or box staffing if the government during the election has partisan bias and is incompetent. The most shameful example of staffing was observed in 'YES/NO' vote in 1977. The election was rigged by the officials under government sponsorship. Some political castaways might have joined.
The writer, a Ph.D., is a retired secretary to government and writes on economic and policy issues. More next
THE distinction between the Election Commission and its Secretariat and to treat the latter as another Division or Ministry is wrong. The fact that the government appoints Secretary to the Commission has generated this flawed perception. The misperception could be avoided if the government 'deputed' officers instead of posting them. An easy solution to the problem has been resisted because of administrative obscurantism.
The model for separation and independence of the Commission Secretariat is available. The Registrar provides support for administration of the Supreme Court and has the financial powers of a Secretary (since late 1990s) which earlier had been exercised by the Law Secretary. Parliament and the Public Service Commission have separate secretariats, though they may take officers on deputation from the government. It took time to persuade the bureaucracy that the model is in conformity with the principles of the financial rules and control.
It has been argued that the Election Commission must have full control over its officers including recruitment, promotion, disciplinary action, and appointment of the officers to the Commission Secretariat. While the argument has force, there are pitfalls also. The separate non-specialist cadre will be very small with an extended base of the pyramid and an extremely narrow top. Cadres so structured offer extremely narrow promotion prospect and cannot attract good candidates.
Further, if the officers are recruited separately and not as part of the BCS cadres, the opportunity for lateral movement (upward as well) into the wider administrative positions (civil secretariat, corporations) will be absent. On the other hand, recruitment as part of the combined civil service cadres also has risk: the Election cadre officers will use the initial appointment as a launching pad for getting into better positions in the government, and court favour with the political leaders or senior officers who can dispense favour. This will cause migration from the cadre and threaten integrity (i.e. neutrality).
There is no best solution - only second best solution. First, the election officers may be recruited as part of the combined civil service cadres; secondly, at mid and senior level (deputy & joint secretary) there may be opportunity for irreversible lateral movement out of or into the Election cadre; third, the Commission will have the exclusive control over inter-cadre migration. This also determines that recruitment will be made through the Public Service Commission. PSC is expected to function competently and honestly, not corrupted by partisan inclinations or private egotism.
A much more complex issue is the Election Commission's control over the general administration (magistrates, police & other disciplined forces) that plays the most important role in conducting election). These officers act as Returning Officers / Assistant Returning Officers and maintain law and order during election. Unless they are completely neutral and can effectively resist extraneous pressure, elections cannot be fair.
The Election Commission can deal with the failure of the general administration in two ways. First, it must cancel the election wherever things go wrong; second, those who interfere with election must be punished. More importantly, the candidate who is responsible for manipulation also should be punished, including ineligibility for contesting election for a period. Since ineligibility for election denies a valuable political right, only Courts under ordinary law should have the jurisdiction for such cases, not the Election Commission ever. Neutrality of the general administration and the disciplined forces will remain problematic until the members attain a high level of integrity and stop playing actively the game of rent-seeking distributive coalition.
The Election Commission should investigate and award punishment to the officers of civil administration and the armed services for offence against election law. The Commission may be granted the powers of the appointing authority which can take action under disciplinary rules and may recommend trial by court. Alternatively, the competent authority may take action and award as recommended by and satisfactory to the Election Commission. No officer or staff member should return to his / her organization and resume duty until the complaints have been disposed of to the satisfaction of the Commission.
The Commission may publish a report in two or more stages of the complaints received and disposed of. The first report shall cover the complaints received and actions initiated; the second and subsequent reports shall cover the disposal of the complaints stating the punishments awarded or acquittal. The first report should be published not later than six months after the election; the subsequent reports should be published every six months until the final consolidated report is made publicly available.
The Election Commission may institute public enquiry into each general election and publish the report. The committee for public enquiry should be constituted well in advance so that it can observe the election process from the very start. Any effort to institute public enquiry after the election will generate controversy as the winners and losers will pull in opposite directions. Public enquiry acts as a quality assurance audit. Currently, the local and foreign observers issue quality assurance of sorts.
The Election Commission is better off instituting its own quality assurance procedures, and not to abdicate to NGOs.
Public enquiry and the reports are instruments of public accountability. The formal accountability rules for the independent commissions / institutions are too complex to be invoked easily. They may install rules for accountability that commences before and runs concurrently with performance which, many analysts maintain, is active responsibility distinguished from ex-post audit. [Mark Bovens, The Quest for Responsibility, 1998, pp.32-42]
Financial independence and accountability: The Constitution already grants the most important budgetary independence to the Election Commission: the Commissioners and all administrative expenses of the Commission are entitled to charged expenditure in the budget. The demand for charged expenditures is not subject to vote; there is no bar to debate the performance of the agency, however. [Article 87 & 88]
The Speaker's Committee of UK provides a model also for the Commission's financial independence, while ensuring conformity with the government's policy for public expenditure issued by the Treasury. The Speaker's Committee receives and scrutinizes the estimates prepared by the Election Commission. The estimates are made in accordance with the Treasury's instructions for spending public money. The Speaker's Committee can seek changes by the Commission, coordinates with the Treasury, and resolves the differences between the Treasury and the Commission -- i.e. the Treasury does not sit in judgment over the Election Commission.
Like the Secretary of a ministry, the Secretary of the Election Commission may be made the Principal Accounting Officer, who is responsible to ensure that the expenditure conforms to the rules and the purposes for which Parliament made the grants. The function of PAO has to do more with oversight on what his subordinates do and less with assuming direct power to spend, which leads to dysfunctional centralization.
The heads of the departments are the controlling authority for the budget of their respective department - e.g. Chief Engineers of PWD, PHED, R & HD, Health Directorate. They are responsible for compliance of expenditure with the rules and the purpose for which the legislature made the grants. They exercise financial powers delegated to them which are obsolete and too niggardly. The rules allow much wider financial delegation to the departments - in fact all the powers of the ministry can be delegated to the heads of departments and project directors.
It is argued that the Election Commission needs to be attached with a ministry because a minister has to move the demand for grants in Parliament.
The Speaker's Committee dispenses with the need for a minister just for this purpose. However, until such a Committee is instituted, a minister has to perform this task. The Prime Minister is the worst choice, for some other minister stands for the budget of PMO.
It is wrongly argued that the Election Commission (any independent agency as well) could be truly independent in financial matters if it were allowed to retain the fees and fines it collects, and were not to depend on government budget. The argument distorts the principles of public finance and the motives for exercising regulative and punitive powers. Free and effective exercise of franchise is the supreme public good in democracy, which should be supplied adequately at government cost. Enough resources will be released by containing corruption as well as unproductive expenditure. (IMF & SNA 1993 provide definitions.)
As to the motivational distortions, the Commission will act rationally imposing the maximum fine which makes it better off while sparing imprisonment. The offenders would prowl freely in society and be a perpetual threat to fair elections!
Broader accountability: Financial independence is often interpreted as immunity from the estimates and the rules imposed by the government. The Finance Division performs this task for the government. No agency which spends public money can refuse the fiscal discipline and accountability imposed by rule: that amounts to fiscal anarchy, not independence.
The Commission Secretary qua PAO has to appear before the Public Accounts Committee, even though the irregularities were committed by an Election Commissioner or a subordinate officer.
PAO can be faulted for not exercising adequate oversight, while the Commissioner and the officer concerned shall be responsible for the irregular or unlawful expenditure. It is indeed difficult to rein in a wayward superior!
The questions regarding performance of the Election Commission may be referred to the Speaker's Committee which, after enquiry to determine the facts, would make communication with Parliament. In case the Speaker's Committee and / or Parliament consider(s) further action necessary, it may ask the President to initiate SJC proceedings against one or more Election Commissioners, or by resolution initiate public enquiry into the Commission as a body.
Parliament may establish the rules for public enquiry in advance and avoid ad hoc decisions as the case arises. Further, Parliamentary Committee for enquiry into independent Commissions and agencies should be broad based and reflect the weight of popular votes rather than membership in Parliament, which corrects vote-seat discrepancy. There should be provision for public hearing and consulting expert opinion. Enquiry of this nature should aim institutional enhancement, not finding faults only. (Certain other measures of administrative accountability have been discussed above.)
Technology no safeguard against dishonest administration: The Election Commission has announced successful completion of the Sripur pilot for preparation of electoral roll. The major - the only hypothesis perhaps -- tested by the experiment is the use of computer (laptop) to prepare electoral roll with voter's photograph. A number of other steps involved in election process have not been tested, or the results are yet to be made public.
The following critical steps precede publication of the voters list: verification of ten percent of the initial registration of voters by house-to-house visit; disposal of objections to the published draft roll by the officers appointed for the purpose; correcting the voters' register by entering the changes decided by the appellate officer. The voters list is not eligible for publication until these steps are completed. It is not clear if these steps have been completed; if these steps had been left out, the design was flawed.
A random stratified sample should be used for verification of 10% voters initially registered. The verification is usually neglected or done perfunctorily based on common sense (e.g. check the first 10% houses as you walk in the area). The National Democratic Institute (NDI) used statistical procedures which detected the excess and flawed registration. Brotee, a local NGO, prepared a parallel electoral roll, which is not feasible or efficient as a statistical audit tool.
The ultimate test of a reliable electoral roll is the extent to which it can effectively control false vote casting and ballot box staffing - the two methods for falsification of election results. There are more gross methods also such as obstruction to voters and intimidation before and after election. The pilot did not test how photographs can contain the strategies for election rigging - it is not possible except in a real election. A wide gap occurs between experiment in controlled laboratory conditions and field application in a normal environment.
Certain steps are necessary to make computerized electoral roll with photograph fool-proof. First, the photographs are to be saved in the computer and protected by security. This would require use of laptops / PCs in the polling booths, raise the number of computers and operators by large multiples yet to be calculated by the Commission, reliable supply of electricity at all polling booths or computer batteries with long life (16-20 hours), and computer trouble shooters for polling centres grouped together on the basis of proximity and ease of transportation.
Second, it should be ensured that the voters lists are printed on good quality papers so that the photographs are clear and ordinary printing presses cannot make copies. Unless these measures are taken, the electoral roll with photographs may not secure much advantage. These would raise cost further and may encounter binding constraints, particularly shortage of skill and utility supply.
Third, ID cards have security thread which provides strong check against impersonation. ID cards, however, will not be used for election. Besides, electoral roll with voter ID cards takes much longer to prepare than the time frame for election (2008) allows and magnifies the constraints.
Finally, the electoral roll prepared with the best technology in the world and printed on the best quality paper do not prevent false casting or box staffing if the government during the election has partisan bias and is incompetent. The most shameful example of staffing was observed in 'YES/NO' vote in 1977. The election was rigged by the officials under government sponsorship. Some political castaways might have joined.
The writer, a Ph.D., is a retired secretary to government and writes on economic and policy issues. More next