Appointment of CEC, ECs: No law in 49 long years

The country is yet to have a specific law for appointing chief election commissioner and election commissioners though there is a constitutional provision for enacting a law for their appointment.

In the absence of such a law, no specific criteria are there regarding the qualifications for appointment of CEC and election commissioners or what will lead to their disqualification, said officials of the Election Commission and the law ministry.  

At present, the government has no plan to enact a law with the current EC completing its four years today, they mentioned.

The EC's tenure is five years and the current commissioners assumed office on February 15, 2017. The first EC was constituted in July 1972.

None of the successive governments in the last 49 years enacted a law despite having a constitutional provision in this regard. And many of these governments constituted the EC by appointing persons of their choice, triggering widespread controversies.

As there is no specific law, the president formed a search committee in 2012 and another in 2017 for appointing CEC and commissioners.

Seeking anonymity, a top official of the Legislative and Parliamentary Affairs Division at the law ministry yesterday said no initiative has yet been taken to make such a law.

Noted jurist Shahdeen Malik said one can argue that the enactment of such a law was not obligatory at the very beginning when the government was busy with the rehabilitation and rebuilding process, securing recognition of other countries and other pressing issues.

But 50 years on, the state cannot plead that it lacks capacity or experience in enacting such a law, he noted.

"Most countries in South Asia have enacted such laws and we don't have to reinvent the wheel. The current practice of the so-called ad hoc search committee is nothing but a sham," the jurist told this newspaper.

Talking to The Daily Star, former election commissioner M Sakhawat Hussain said, "I cannot say the exact reason why successive governments have not enacted the law. But I think, no government wished to have such a law under which CEC and commissioners will be appointed."

"Formation of a search committee is not a permanent solution, rather it is an ad hoc arrangement. It is not an independent body. It is created through a presidential order," he added.

Article 118 (1) of the constitution says, "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 (if any) shall, subject to the provisions of any law made in that behalf, be made by the President."

PAST INITIATIVE

Sakhawat said the EC, which was constituted in 2007, prepared a draft law in 2007-2008 and the then caretaker government advised it to present the draft to the new government.

"After further review, we prepared another draft in 2011 upon consultation with legal and constitution experts and others. We sent it to the government [the same year]. I cannot say further about it. I don't know its fate," said Sakhawat who served as an election commissioner from February 2007 to February 2012.

The Daily Star obtained a draft copy of the "Chief Election Commissioner and Election Commissioner (Appointment Procedure) Act, 2012," prepared in November 2011.

The draft proposes constituting the EC with CEC and four election commissioners. One of the commissioners will be a woman.

It suggested that the president should appoint commissioners who are skilled, honest, righteous and neutral.

It has also proposed having a five-member search committee which will recommend three names for each post of election commissioner. And then those will be sent to the Business Advisory Committee of parliament for scrutiny.

"… None of the governments thought about it [enactment of a law on appointment of election commissioners]. We tried to understand why several election commissions failed to gain people's confidence. We studied it, prepared the draft and made a recommendation to the government.

"It is government's duty," noted Sakhawat.

Talking to this newspaper, Election Commissioner Rafiqul Islam said there should be a law for appointing CEC and commissioners, and it is the government's responsibility to enact the law.

"A previous commission prepared the draft either due to its overenthusiasm or to help the government enact a law.

"We can't say why the law was not enacted in about 50 years since the country's independence," he mentioned.

Ex-cabinet secretary Ali Imam Majumder said, "Many things depend on the will of the government.

"I have the experience of working with several search committees. In most cases, the government's desires are fulfilled by these committees," he said.

Contacted, Law Minister Anisul Huq said the president formed the search committees in line with the rules and regulations on appointment of election commissioners.

Asked whether the government will take initiative to make a law in this regard, he avoided giving a direct answer, and said, "I am not saying that such alaw is not needed. If we can enact it, we will get scope for incorporating many things in it."

CONTROVERSIES

Election watchdogs and civil society members have criticised the current EC over the holding of the 2018 national election. It has also come under fire over allegations of financial corruption and irregularities and also low voter turnout in different elections, including by-polls.

At a party meeting on Saturday, Workers Party of Bangladesh, a component of the ruling alliance, alleged that the government's interference in the electoral system is now public knowledge and people have lost confidence in the system.

The EVM (electronic voting machine) system has turned into a nightmare and the system is being used for irregularities, said meeting sources.

Recently, forty-two eminent citizens urged the president to constitute Supreme Judicial Council to probe allegations of corruption and misconduct by the EC.

They wrote twice to the president -- on December 14 last year and January 17 in two letters.

In their first letter, they said the current EC indulged in misconduct and irregularities, including expenditure on "special speakers" for delivering speeches in training programmes ahead of the 11th national election and fifth upazila polls.

In reply, CEC KM Nurul Huda on December 24 last year said the allegations over the EC's Tk 2-crore expenditure were made on false grounds.

Last year, the EC made a U-turn on its plan to revise the Representation of the People Order (RPO), 1972, following criticism from different quarters.

It also backtracked from its decisions to change the name of the RPO and give Bangla names to different local government bodies and their associated positions.