The BNP high command has already ruled out the possibility of any reform in the existing non-party caretaker system of government. The BNP has also ruled out the possibility of any dialogue with the opposition on the issue of appointment of the next CEC.

The tenure of appointment of the incumbent CEC Mohammad Abu Syed expires on May 22. The first encounter between the government and the opposition will thus take place this month over the appointment of the new CEC. The discussion in this article has, therefore, been limited to the appointment of the CEC.

Let us first look into the constitutional provision regarding appointment of the CEC. The constitution of Bangladesh provides that there shall be an Election Commission for Bangladesh consisting of a Chief Election Commissioner (CEC) and such number of other Election Commissioners (ECs), if any, as the President may from time to time direct, and the appointment of the CEC and other ECs shall, subject to any law made in that behalf, be made by the President. When the Election Commission consists of more than one person, the CEC acts as the chairman thereof. The term of office of the CEC and the ECs is five years from the date of entry into office. An EC is eligible for appointment as the CEC. A CEC or EC can not be removed from office except in like manner and on the like grounds as a Judge of the Supreme Court.

It appears from the above that appointment of other Election Commissioners is not mandatory and the Election Commission may consist of the CEC only. It may be mentioned that the constitution of Sri Lanka provides for a Commissioner of Elections who is appointed by the President and holds office during good behaviour.

According to the constitution and the laws made thereunder, the functions of the Election Commission are: (a) holding elections to the office of the President of Bangladesh; (b) holding elections of members of Parliament; (c) delimiting the constituencies for the purpose of elections to Parliament; (d) preparing electoral rolls for the purpose of elections to Parliament; and (e) conducting elections to different local bodies such as Union Parishads, Upazila Parishads, City Corporations, Pourashavas, Hill District Councils, etc. The above functions amply show that as the head of the Election Commission, the CEC shoulders great responsibilities.

To discharge the aforesaid functions successfully, the need for an efficient, neutral, and honest person as the CEC can hardly be over-emphasised. But one may reasonably ask whether it is possible to get a person who is acceptable to all the political parties. In the absence of any law requiring compulsory registration of political parties, it is difficult to say how many political parties we have at the moment. More importantly, there is no provision in the Constitution, which requires consultation even with the Leader of the Opposition in the House for appointing the CEC or ECs.

Under these circumstances, we may have a look into the constitutional provision regarding appointment of the CEC or ECs in some of our neighbouring countries.

According to the constitution of India, Chief Election Commissioner (CEC) and other Election Commissioners (ECs), if any, are appointed by the President. There is no provision in the constitution which binds the government to discuss with the opposition parties for appointing the CEC or the ECs.

The constitution of Pakistan does not contain any provision for consultation with the opposition parties for making appointment of the CEC and two ECs. But the constitution provides that the President shall not appoint a person to be CEC unless he is, or has been a Judge of the Supreme Court, or is, or has been, a Judge of a High Court and is qualified to be appointed a Judge of the Supreme Court. The two ECs are appointed by the President from amongst the High Court Judges in consultation with the Chief Justice of the High Court concerned and with the CEC.

The 1990 constitution of Nepal is a product of the people's struggle for democracy and fundamental rights. The Constitution of Nepal provides for an Election Commission consisting of a Chief Election Commissioner and such number of Election Commissioners as may be required. On the recommendation of a Constitutional Council, His Majesty appoints the CEC and other ECs. Article 117 provides for a Constitutional Council for making recommendations in accordance with the Constitution for appointment of officials to Constitutional Bodies. The Constitutional Council is headed by the Prime Minister and the Chief Justice, the Speaker of the House of Representatives, the Chairman of the National Assembly, the Leader of the Opposition in the House of Representatives are its members.

The constitution of Fiji provides for an Electoral Commission which is responsible for the registration of the voters for election of members of the House of Representatives and for the conduct of those elections. The Electoral Commission consists of (a) a Chairman who is, or is qualified to be a Judge; and (b) four other members. The Chairman is appointed by the President, acting in his or her own judgement. The other members are appointed by the President on the advice of the Prime Minister following consultation by the Prime Minister with the Leader of the Opposition.

It appears from the above discussion that the constitutions of some of our neighbouring countries contain provision to involve the Leader of the opposition in the appointment of the CEC and the other ECs.

A cursory look into our constitution will reveal that the framers of our constitution heavily depended upon the constitution of India. Even the Rules of Procedure of the Lok Sabha have greatly influenced the framing of the Rules of Procedure of our Parliament, which were adopted on July 22, 1974. We ought to remember that although the constitution of India provides for a parliamentary system of government, yet the executive power of the union has been vested in the President. The President is a part of the legislature. But in Bangladesh, the executive power of the Republic is vested in the Prime Minister who happens to be the chairperson of a political party. The President is also not a part of Parliament. In the exercise of all his functions, save only that of appointing the Prime Minister and the Chief Justice, the President has to act in accordance with the advice of the Prime Minister.

In the absence of any consultation with the opposition, particularly with the Leader of the Opposition, for appointment of the CEC, it is not unlikely that a person sympathetic to the ruling party will be the choice of the government for the position of the next CEC. It is a fact that no government including the AL government in the past did consult the opposition, in particular the Leader of the Opposition, for making appointment to the posts of the CEC and the ECs. But we have seen above that such consultation with the Leader of the Opposition takes place in some of our neighbouring countries.

Why can't we have a constitutional provision for consultation with the Leader of the Opposition for making appointment to the position of CEC? The opposition parties should realise that it is next to impossible to find a person as the CEC who is acceptable to all the political parties. They should trust the Leader of the Opposition. The number of ECs should not exceed two, and the CEC shall be consulted for appointing EC(s). The main opposition AL will have to convince the opposition parties to agree to such amendment(s). The AL may bring a bill accordingly in the ensuing budget session. The BNP should not resist the bill. Rather, it should extend full support for its passage. After all, there are no last words in politics. Who knows that the BNP will not be benefited from such amendment(s) in future. The government should not proceed with the appointment of the new CEC before the passage of the bill.

M. Abdul Latif Mondal is a former Secretary to the GOB.