In search of an acceptable EC

President Abdul Hamid will start his dialogue with BNP in order to constitute a new Election Commission due in early February acceptable to the major political parties, primarily meaning the AL and the BNP. So the President has a tough task in hand. Will he succeed? The answer really lies with the Prime Minister because our constitution clearly states that on every matter other than two-calling upon the majority leader of the House to form a government and naming the chief justice-the president must act on the advice of the PM. So how far the president can go in accommodating the demands of the BNP and others will singularly depend on the space that Sheikh Hasina gives him.  Let us not forget that the very fact that this dialogue is at all being held is because the prime minister has invited him to do so.

Why is it that every time an election commission is to be constituted we need to hold a national dialogue by no less a person than the president? Why is it that so much acrimony and mutual suspicion is generated and so much persuasion and cajoling have to be done by all concerned to bring about a new EC, as if concerned leaders and parties are doing us voters a favour by accepting what is being suggested.

The reason is something many know but many others don't. It is because we do not have a law delineating clearly the procedure on how to set up an Election Commission. The constitution states in article 118(1) that “There shall be an Election Commission… and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf (emphasis ours), ….”   It is tragic but true that no government since 1972-of all shades and hues, including the democratically elected ones- ever formulated such a law. This is because the absence of such a law gives the government of the day all the maneuverability possible to have an EC of their liking, hoping to influence the election.

 All Saarc countries have such a law except India and Bangladesh.

In case of India, EC's track record substitutes for the gap that the absence of a law creates. Since its first election in 1952, and through all the elections held subsequently- to India's great credit it did not miss a single election since birth- the Indian EC has conducted elections in a way that has earned it public confidence and has made the EC not only credible but also very powerful. Save for constituency based conflicts, no party ever rejected the outcome of any national level election, such is the reputation, prestige and image of the Election Commission.

In Bangladesh's case we neither have the law or the credibility of the Election Commission. Except for the election of 1973, all other elections (we are not considering the ones held under military rule), including those held since 1991, were rejected by the party that lost it, discrediting the EC with claims of partiality, mostly unproven. Perhaps the greatest damage to the reputation of the EC was done by Justice Aziz as the CEC-his appointment was itself illegal as he was still serving as Appellate Division Judge-when 13 million false voters were registered under his watch. This caused severe damage to EC's ever dwindling credibility.  The present Election Commission has done very little to retrieve the much needed image and credibility of the commission.

Thus President Hamid has a challenging task indeed, assuming that the PM really allows him space to seriously ply the role of an honest go-between. In his favour goes his formidable reputation as a former speaker of the House during which he earned the respect of members from both sides of the aisle. He is also known to have a mind of his own and the strength of character to insist on what he knows and believes to be correct. But the reality is that his limitations are real and framed by the constitution.

The agenda for BNP's talks today is of course setting up of a neutral and credible Election Commission. It has already talked about a “Search Committee” for this purpose which may be accepted by the AL- if we go by experience- as it did the last time when late Zillur Rahman was president.

From the looks of it, the last Search Committee couldn't have had a better profile-An Appellate Division judge as chair, the CAG, PSC Chairman and a High Court Judge as members. How could anyone quarrel with such a high profile committee? And yet, from the way it performed, one has a lot to quarrel about with the EC that came out of their work. 

As to how freely that Search Committee was actually allowed to “search” and then how freely was the EC allowed to function when it ultimately came into being are questions yet to be answered.

As at one time in history all roads led to Rome, in today's Bangladesh all decisions emanate from the PM. Realistically speaking, at this moment, all power rests with the PM and only that will happen which she wishes to. 

So what is the prospect of the dialogue starting today reaching a fruitful outcome? Will we get a credible, powerful and independently functional Election Commission? And finally, will that EC be able to hold a genuinely free and fair election?

In my view the answer to all the three above questions, and many others, lies in one simple fact, which is that the cost of election defeat in Bangladesh has become intolerably and unbearably high. Every election must, by definition, have a loser. But in Bangladesh that is now a dangerous option, amounting to jeopardising one's very existence. Since 1991 every election brought the loser greater and greater misery starting from losing privileges, business, power and extending even to party and personal freedoms. Opposition parties faced the wrath of the ruling party that became progressively severe over time. BNP's present day situation is a culmination of that process.

But what affected the growth of democratic politics in Bangladesh most tragically and perhaps irreparably was the attempt on the present prime minister, then leader of the opposition, Sheikh Hasina's life on August 22nd, 2004. In that dastardly grenade attack, which in today's parlance would be termed as a terrorist attack, 23 AL leaders were killed, including late President Zillur Rahman's wife, Ivy Rahman, who was also the chief of AL women's wing. Sheikh Hasina was inches away from her own death and survived miraculously. Whether, and to what extent, BNP and its leaders were involved the courts will decide, as the cases are on. But the whole nation, especially media, witnessed what little effort was made to catch the real culprits and what massive efforts were made to deflect public attention to make it look like an internal AL conflict, etc. (The Daily Star and this writer have written extensively about it earlier).

Following AL's victory BNP has suffered what I termed earlier as "very high cost of defeat" with many of its leaders in jail, many others having dozens of cases against them, led by Mirza Fakhrul having more than 70 cases lodged against him. Some of their leaders have even disappeared with no attempt on the part of law enforces to find their whereabouts. Contrarily BNP must shoulder the blame for the violence and petrol bombing of people during 2014 and again in 2015.

It is in this background that the dialogue starts today. I apologise to my readers if I have drawn a pessimistic picture. I have only recounted facts as they stand and how I see them.

But at the end of the day, it is our country, our freedom, our democracy, and our future. It is through all this maze of our past actions and errors that we will have to find our way towards democracy and a better future.

For the talks to go anywhere, BNP has to be realistic in its demands and finely calibrate what can and what cannot be achieved.

AL, on its part, must be as accommodative as possible knowing that democracy cannot be a personal gift but an institutional phenomenon that will survive time and transformations. The digital world, whose introduction to Bangladesh is a great achievement of this government and that of the prime minister, will not permit any other type of government but a democratic one to ultimately survive, regardless of its temporary setbacks. That is the fundamental reality of the 21st Century world which we as a nation and our leaders as a group must internalize.