Upholding voters\\\' right in a democratic election

The fact that the 10th Parliament has had 154 of its members elected without a single vote cast has become an embarrassing issue for the government. It has raised serious questions on the legitimacy of the elections that, in turn, has also raised legitimate questions about the government and parliament. The government has defended itself by blaming the Bangladesh Nationalist Party (BNP) for abstaining from the elections that, it has argued, led to so many persons to become members of parliament without a vote. A recent statement by a minister that in the next parliament, 200 and more candidates would become members of parliament without a vote is not helping the AL-led government's cause.
The United States is the world's oldest democracy. Democratic countries around the world have accepted, willingly or otherwise, the US as the role model for the establishment of democracy, democratic institutions, principles and customs in their respective countries. There was an interesting case in New Jersey in 2002 involving an election to a seat in the US Senate that should help understand better how fundamental democratic principles related to the rights of the voters were sacrificed in Bangladesh when 154 of its members of parliament were returned without a single vote.
In 2002, Democrat Senator Robert Torricelli resigned from the race literally at the 11th hour leaving the door open for his Republican opponent Douglas Forrester for a walk-over victory. Senator Torricelli was a star Democrat Senator, "a master fundraiser and stirring orator who has contributed as much as anyone in recent years to his party's success". Unfortunately, leading to the 2002 election, the Senator was mired in controversy and there was a media and voter backlash against him. He had been accused of accepting expensive gifts from a party contributor for which the Senate Ethics Committee had admonished him.
The Senator withdrew himself from the race when his chances of winning were very slim. More importantly, his withdrawal became a major political issue of the time because the question of which party would control the Senate depended on the outcome of the election. The GOP or the Republicans argued that the seat should automatically go to their candidate as New Jersey electoral law specifically stated that no party would be allowed to replace a candidate within 51 days of the election. Senator Torricelli had withdrawn his name with only 35 days left for the election. The GOP demanded that the Democrats should not be allowed to name a replacement candidate and its candidate Douglas Forrester should be declared the winner on the basis of the electoral law related to the replacement of candidate.
The Democrats agued that that the 51-day limit for replacement of a candidate was "administrative and procedural". What, according to them, was more fundamental as regards to election was the right of the voters to cast their votes. They further argued that the fundamental issue of the right of the voters to vote should supersede the 51-day "administrative and procedural" limit. The case was taken to the New Jersey Supreme Court that unanimously ruled that the Democratic Party could legally replace Senator Torricelli's name on the ballot so that the fundamental right of the voter to choose candidates was not taken away from them. Senator Torricelli's replacement, Frank Lautenberg, won the election. It was evident to everybody, including the Court, that Senator Torricelli withdrew because he knew he would lose the election and that the electoral law was in favour of the GOP. Yet the Court overruled the electoral law on the more fundamental issue of the right of the voter to vote in an election that cannot be taken away under any circumstances.
The Torricelli case clearly established the right of the voter in an election in a democracy as inviolable. In the context of the ruling of the New Jersey Supreme Court, the way the January 05, 2014 elections in Bangladesh were conducted would simply stand no chance of being called a democratic election. In Bangladesh's case, it was not just one seat or voters of one specific constituency who were deprived of their fundamental right to vote; the right of the voters were taken away from 154 constituencies involving over 40 million people or the majority of the country's voters on the "procedural and administrative" argument that there was no attempt by the other political parties to name candidates in those seats. On the basis of the inviolable right of the voter that is at the heart of democratic election, the January 05 elections should have been deferred without any question. That was incumbent upon those who conducted the January 05, 2014 elections.
There were other equally strong arguments for which the Election Commission should not have held the January 05, 2014 elections. The first is the common sense argument - that it did not make any sense to go ahead with those elections once more than 150 seats were elected without the need of the people to vote because those numbers were enough to form the government. The January 05 elections violated the first sentence of the Preamble of the Constitution that states categorically that the people are source of all power by electing both the government and parliament without their vote. It also violated Article 65 (2) of the Constitution that clearly states that the members of parliament must be elected directly by the people. Finally, one of the four fundamental principles of state policy in the Bangladesh Constitution is its faith in democracy. An election in which 90 per cent of the voters were not given their right to vote for whatever reasons to elect the parliament cannot, by any definition, be called democratic.  
The current disturbances in the country should not be mistaken as terrorist acts, the nature of the violence notwithstanding. These are political in nature and resolution lies in correcting the distortions of democracy and democratic principles that were made by the national elections held on January 05, 2014. Bangladesh's war of liberation was all about establishment of democracy. That is also the spirit of 1971. Therefore, the need of the hour is political dialogue between the two mainstream political parties leading to fresh national elections.
The longer it takes to hold such a dialogue, the deeper will the country sink into the abyss of despair and destruction. The case of Senator Torricelli would, no doubt, help those opposing fresh elections understand where they stand with the January 05, 2014 national elections.
The writer, a career diplomat, is a former Ambassador.  [email protected]