According to Article 118 (1) of Bangladesh’s constitution, “There shall be an Election Commission for Bangladesh consisting of the Chief Election Commissioner and not more than four Election Commissioners and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf, be made by the President.” Despite such a clear directive in the constitution, not a single government over the past 50 years has made this law, and this is contrary to the rule of law. So if the rule of law is to be established in Bangladesh, it is essential to have a law in order to change the present Nurul Huda Commission. As the tenure of the Nurul Huda commission ends in February, it is imperative that the law be drawn up immediately.

The main reason that no law for the appointment of an election commission was drawn up over the past 50 years is that the politicians are unwilling to be bound by any form of regulations. If any law is enacted, then certain rules and regulations and a specific process would have to be followed to appoint the election commission. It would not be possible for the ruling party to adopt underhand means to make the appointments at their will. Politicians in no way wanted to be prevented from taking any decision, and so they overlooked the constitution and did not formulate the law.

If the election commission was formed “subject to the provisions of any law”, there would be bright possibilities of upholding the interests of the people. The interests of the people would only be upheld by means of a free, fair and credible election to establish the rule of actual representatives of the people. This would usher in a government liable to the people and a government that would work for the welfare of the people. That is why our aspiration is to have a credible election ensured by an election commission consisting of the correct and independent-minded persons appointed by means of a law.

Our wise authors of the constitution firmly believed that a government comprising honourable persons, rather than those with vested personal and coterie interests, would enact a law acceptable by all, paving the way for democratic rule. They also believed that the law would be enacted, taking into confidence the political opposition and all concerned, so that it would be effective.

A credible and effective law to appoint the election commission must have certain important provisions. Firstly, it must be specified who will be qualified to be appointed to the commission and who will not qualify. If this is specified in the law, it will be difficult to simply appoint just any one. In order to determine a person’s qualifications or lack of qualifications, the background of the possible appointees will be detailed in their affidavits.

Secondly, a procedure will be fixed to select the correct persons to appoint to the commission. This procedure can be in the form of a search committee comprising non-partisan and respected individuals. This search committee can include representatives of the parliament, civil society and the media. As in certain neighbouring countries, there can be a special parliamentary committee for the appointments to all constitutional and statutory institutions.

As the present national parliament was formed through an extremely controversial election and is, in effect, in the control of the executive, questions may arise on how justified it would be for a special committee to be given the responsibility to appoint the election commission. Incidentally, our constitution of 1972 gave the parliament the power to impeach judges of the Supreme Court and the attempt to reestablish that power by means of the 16th Amendment, was unanimously ruled as unconstitutional by the Appellate Division of the Supreme Court.

Thirdly, the work procedure of the search committee must be transparent. The minutes of all the meetings of the search committee must be recorded and published by means of a public notice for the people’s information. In particular, the opinions of each member of the search committee for and against the names sent to the president for recommendation, must be recorded and made public.

Fourthly, in order to maintain the continuity of the election committee’s work, the senior most member of the election commission formed in keeping with the provisions of the law, can be appointed as the chief election commissioner.

Fifthly, the transparency of the entire process of appointing the election commission must be ensured. For example, the names on the panel of persons in the first round of selections by the search committee must be made public along with their affidavits and a public hearing about them must be organised. A report must be drawn up and made public about the names recommended to the president for the election commission, with explanations on what consideration they have been selected. After adequate time is given for the people to voice their views on the concerned persons, the president will make the appointment by means of a gazette notification.

At our initiative at SHUJON (Citizens for Good Governance), we prepared and published a draft of a law for the appointment of the election commission, with the inclusion of the above provisions. We hope the government discusses the draft with the concerned quarters and takes initiative to enact an acceptable law in this regard. We feel there is still adequate time for the government to do so.

Even if the election commission is appointed by means of a law, there is no guarantee that the correct persons will be appointed to the commission. This will require the honest intention of those in power. But if a search committee to select the correct persons is formed by means of the law and if there are provisions to verify the qualifications and lack of qualifications of those to be appointed and if a transparent process is followed, a guardrail will be created against unwanted persons in the election commission.

There are many important parties involved in the election, of which the election commission is the most important. Outside of election commission, the most important party concerned is the government, that is, the administration and the law enforcement. Unless the administration and the law enforcement act neutrally during the election, it will not be possible even for a neutral and powerful election commission to conduct free and credible polls.

If any insurmountable obstacle arises to holding a credible election, the election commission can stop the election. If there is rigging in the election, they can cancel it, based on investigations. So even in extremely adverse conditions, the election commission can function as a safeguard to the integrity of a credible election.

In conclusion, those in power have already declared that the election commission will be appointed by means of a search committee. Unfortunately, the constitution has no provision for the election committee to be appointed by means of a search committee without enacting any law. And as Article 48 (3) of the constitution states that other than the appointment of the prime minister and the chief justice, the president will take decisions in accordance to the prime minister’s recommendations, the search committee formed by the president will comprise persons of the prime minister’s liking. So the credibility of the search committee as well as the credibility of the election commission formed on recommendation of that search committee, and its ability to protect people’s interests, will remain uncertain and controversial. We hope the government does not go in that direction.

* Badiul Alam Majumdar is secretary, SHUJON (Citizens for Good Governance)

* This column was published in the print and online editions of Prothom Alo and has been rewritten in English by Ayesha Kabir

Source: Prothom Alo | November 15, 2021