The erosion of trust in our electoral system must be addressed and rectified

In 2017 I had made a written submission recommending transparency in the reconstitution of the Election Commission, but my recommendations were largely ignored. Now I want to raise a few questions and concerns and to reiterate my earlier recommendations. 

My first question is: Does the search committee really search for anything? According to former Justice Abdul Matin of the Appellate Division of Bangladesh Supreme Court, the Cabinet Division hands over CVs of persons of the government’s choosing and the committee has to pick from them. Thus, the committee appears to merely rubberstamp the decision of the government.  

We have learned from a recent news report that, in 2017, the ruling party used a strategy to influence the decision of the search committee by arranging their coalition members and other allies to repeatedly propose the same names. According to the report, “in 2017 at least four parties — Jatiya Party, Workers Party, NAP and Tarikat Federation — proposed the name of KM Nurul Huda as the CEC, although the Workers Party denied it. Commissioner Rafiqul Islam’s name was proposed by five parties: Jatiya Party (JP), JSD, Symobadi Dal, Tarikat Federation and Jatiya Party (JP). Kabita Khanam’s name was proposed by Awami League, Symobadi Dal, NAP and Gonotantri Party. Shahadat Hossain’s name was proposed by Symobadi Dal and Gonotantri Party.” 

In an interview with Prothom Alo, Professor Syed Manjurul Islam said: “The new CEC’s name was proposed by seven to eight parties and Ali Imam Mazumder’s name came from two parties.” Clearly, Mr Nurul Huda was recommended for the position of CEC because his name was repeatedly proposed by different parties, not necessarily for his qualifications. 

Three things are clear and worth noting from the experiences of the reconstitution of the EC in 2017. First, the ruling party decided the names of the people to be appointed to the EC ahead of time. Second, they were able to include the names of their chosen people in the panel recommended by the search committee to the president. Third, the search committee appears to have recommended individuals whose names were proposed the most instead of searching for the most competent persons. 

As a result, the names of all four individuals handpicked by the ruling party were included in the panel of 10 recommended to the president. Thus, a rather relatively unknown individual like Mr Nurul Huda, with the experiences of a joint secretary under his belt and with a highly controversial past, and who was victimized by BNP and rewarded by Awami League, was able to be recommended for the highly sensitive position of CEC. It was not a small feat that the ruling party was able to appoint all four of its chosen candidates to the EC. 

My second question: Did the search committee exercise due diligence in recommending candidates at all? According to Black’s Law Dictionary, due diligence is defined as “a measure of prudence, activity, or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent man under the particular circumstances; not measured by any absolute standard, but depending on the relative facts of the special case.” There can be common or high-level due diligence. The search committee members are not ordinary people, hence a higher level of prudence and assiduity is expected of them.  

In our everyday life, we exercise due diligence. In hiring people, we give examinations, hold interviews and check their references to determine the candidates’ competence, suitability, and integrity. Like many others, my question in this regard is: Did the last search committee really exercise due diligence and check the backgrounds of those they recommended?

People who fail to exercise due diligence are usually held accountable for their negligence. Who must be held accountable for all the misdeeds of the Huda commission? It has destroyed our electoral system, taken away our voting rights, and fomented serious mistrust in our electoral system and the EC. Using the centre-wise election results received after filing an RTI application, we, on behalf of SHUJAN, were able to show that there were 100% vote casting in 213 centres; BNP received zero votes in 1,177 centres; Awami League received zero votes in two centres; in 590 centres all valid votes went to a single symbol. These unbelievable results are conclusive proof that most of the declared results of the 11th parliament election were manufactured. 

As a result, Justice Matin deemed the present Commission the worst Election Commission in Bangladesh’s history. 

No one is above accountability in a democratic polity. Last year, 42 distinguished citizens asked the president to form a Supreme Judicial Council to investigate the Huda commission for gross misconduct and corruption but got nowhere. Can the appointing authority of the Huda commission, or those recommending its appointment, avoid their responsibilities for not exercising due diligence? 

In the past, we have trusted the president, the prime minister, political parties, and the search committees — and we were all fooled. But, as the expression goes: Fool me once, shame on you. Fool me twice, shame on me. We were fooled twice, but no more. If we are to be fooled again, the nation may face grave danger. The people of this country are looking up to the search committee to restore trust in the system and institutions and get the nation out of danger. 

We realize that the search committee faces many daunting challenges, one of which originates from the limitations of the recently passed law. The new law can allow the government to form a similar type of partisan EC as was possible earlier by issuing circulars. Another serious challenge is that the ruling party is reported to have again decided to influence the search committee with the strategy it successfully utilized in 2017.. 

Nevertheless, we want to be optimistic.

Section 4(1) of the law requires the search committee to follow the “principle of honesty and neutrality” and recommend people of “honesty and good reputation” for appointment to the commission. According to famous American jurist Louis Brandeis: “Sunlight is the best disinfectant.” In other words, doing everything openly is the only way to ensure transparency.  

In addition, there is no appropriate yardstick for a person’s reputation — the people’s perception is its only measure. If the people, who wield ultimate power, are taken into consideration and are allowed to express their views, we will know whether the persons under consideration for the search committee live lives consistent with their known sources of income, whether there are credible allegations of corruption against them, and just how unwavering their integrity is. 

The only measure of such higher types of qualifications is popular opinion. If people’s opinions are considered and due diligence is exercised, there is greater likelihood that the right people would be appointed to the EC. In addition, information is sought to reveal the truth, not to harass anyone or assassinate anyone’s character. The culture of secrecy also has no room in a democratic polity.    

More specifically, my request to the search committee are as follows: 

(1) Please define the process through which you will ensure transparency and measure the reputation of the individuals you are considering. The people of this country are counting on you to eradicate the crisis of confidence 

(2) Please disclose the names of the 322 individuals submitted to you and the names of the political parties and professional organizations submitting them. Bikalpla Dhara and Gonofront have already made public the names of the people they have proposed 

(3) Please make a short list of 20, with at least five women, and make the names public. Interview these 20 and hold public hearings about them. Honesty, competence, and reputation must be the criteria for making the short list. It may be recalled that Professor Manjurul Islam also recommended hearing for candidates for appointment to the EC

(4) Prepare the final list of 10 and a report justifying their inclusion in the list. Make the list and the report public three days prior to their submission to the President. After the Search Committee completes its work, prepare and publish a report along with the committee’s proceedings so that the nation will know the criteria used in making the final list. 

Professor Wahiduddin Mahmud recently reminded us that the reconstitution of the EC with appropriate people is the first step toward fair elections, but the election-time government is even more of an important step towards that end. 

In Khondoker Abdus Salam v Bangladesh [6 ALR (Spl Issue) 215] — a case filed challenging the 10th parliament election — the observation of a Division Bench of the Bangladesh High Court comprised of Justice Mirza Haider Hossain and Justice Khurshid Alam Sarkar pointed towards finding an acceptable formula for the election-time government. 

Dr Badiul Alam Majumdar is Secretary, SHUJAN: Citizens for Good Governance. This article was originally made as a statement in front of the search committee by the author and has been published with permission.

Source: Dhaka Tribune | February 20, 2022