EC formation law: Search committee getting legal cover
Nearly 50 years after the constitution prescribed enacting a specific law for forming Election Commission, the government has finally approved the draft of a law to appoint the chief election commissioner and other commissioners through a search committee.
The six-member committee, to be headed by a judge of the Supreme Court's Appellate Division, will recommend names to the president for the appointments, Cabinet Secretary Khandker Anwarul Islam said, adding that the judge would be nominated by the chief justice.
The law, once in use, would give legal protection to ECs formed through search committees in the past. It would be considered that those were formed under the law, Anwarul said while talking to reporters after the cabinet meeting yesterday.
The tenure of the current EC, led by CEC KM Nurul Huda, expires next month.
The secretary did not make it clear whether the next EC would be formed under the proposed law, but sources in the ruling Awami League said the upcoming search committee would be constituted under it.
If the proposed law is not passed in the ongoing session of parliament, President Abdul Hamid may promulgate an ordinance to turn it into an act for its quick enforcement, said a member of an AL delegation, which attended a dialogue with President Abdul Hamid on EC formation yesterday.
The senior AL leader, wishing not to be named, said the president thanked the ruling party for coming up with the draft law.
He quoted the president as saying that since almost all political parties want a specific law for the EC formation, it would now be easier for him to form the search committee.
At a press conference after the dialogue, AL General Secretary Obaidul Quader said his party proposed enacting a law to appoint the CEC and other commissioners.
Hoping that formulation of the law would be possible within a short time, he said, "Come and see, nothing is impossible."
The president has held the dialogue with 25 out of the country's 39 registered political parties. Almost all of them suggested enactment of a law for EC formation.
The dialogue, which began on December 20, ended yesterday with AL's participation.
Sources, meanwhile, said the move to enact the law was made since the government wants to avoid possible controversies over the matter.
Election experts and jurists think the move was nothing but an attempt to give legal cover to the ECs, which were constituted through search committees.
They also raised questions over transparency in appointing the CEC and other commissioners in future.
"It seems more of a law to appoint a search committee. Will the search committee disclose the names to be proposed? Will those names be sent to parliament for discussion?" former election commissioner Brig Gen (retd) M Sakhawat Hossain asked while talking to The Daily Star.
Echoing his statement, Badiul Alam Majumder, secretary of Shushashoner Jonno Nagorik (Shujan), said, "The current and previous commissions formed through search committees destroyed the country's electoral system."
The ECs drew flak from the opposition parties, election watchdogs, and civil society members over holding the national elections in 2014 and 2018.
Article 118 (1) of the constitution categorically says, "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."
It suggests the law is mandatory for EC formation, but no governments had paid heed to it in the last five decades.
In the absence of such a law, there were no specific criteria on appointment of the election commissioners. What will lead to their disqualification was also not clear.
As a result, most governments in the past constituted ECs by appointing people of their choice, experts said.
To remove controversies, a former EC, led by CEC Shamsul Huda, had drafted a proposal in 2007 to enact a law in line with the constitutional provision. The move did not get government support at that time.
Both in 2012 and 2017, president picked CEC and four election commissioners after search committees suggested names for the appointments.
Yesterday, the cabinet meeting, chaired by Prime Minister Sheikh Hasina, approved the draft of "Chief Election Commissioner and Election Commissioner Appointment Act, 2022".
Replying to a query, the cabinet secretary said hopefully turning the draft into a law would not take much time.
THE SEARCH COMMITTEE
As per the proposed law, the search committee will include a High Court Division judge, the comptroller and auditor general, the chairman of Bangladesh Public Service Commission, two other persons nominated by the president.
The 2017 search committee was formed following the same structure. In 2012, the president formed a four-member search panel for appointing CEC and other commissioners.
The proposed act stipulates some eligibility criteria -- the chief and other commissioners must be Bangladeshi citizens, aged at least 50, and have experience of at least 20 years in important government, semi-government, judicial or private jobs, said the cabinet secretary.
A former chief of EC cannot be considered for the same post again. However, other election commissioners, present or former, may be appointed as CEC, he said.
Sakhawat Hossain said if the names recommended by the search committee are not discussed in parliament, the EC will not be formed through consensus.
"So, to me, it is not a full-fledged law," he said.
Badiul Alam said the search committee should make the names public twice -- once when the committee will primarily consider the names and then when it will submit them to the president.
"There must be a clear explanation on why those persons were chosen. The whole exercise will be futile if transparency is not ensured," he added.
Last year, Shujan prepared a draft of a proposed law on the appointments and submitted it to the law minister.
Eminent jurist Shahdeen Malik said the representation of three major political parties in the search committee was necessary since political parties were the most important stakeholders in any election.
"Lastly, the search committee should not send a list with names of more than seven persons for the final appointment of CEC and four commissioners," Shahdeen said.
He said the search committee should work in a transparent manner and always keep the public updated about the names.
"Only then, such a process will make the election commission more acceptable to the people," he added.
PRACTICE IN SOME OTHER COUNTRIES
In India, the president appoints the CEC and other election commissioners on the advice of the council of ministers led by prime minister. The council of ministers collectively advises the president on the appointments.
However, no law on their appointment has so far been enacted by the Indian parliament.
Other Saarc countries -- Pakistan, Sri Lanka, Nepal, Bhutan and the Maldives – apparently have a more developed mechanism to constitute their ECs through consultations and scrutiny.
In Pakistan, for example, the prime minister, in consultation with the leader of the opposition in the National Assembly, forwards three names for appointment of each commissioner to a parliamentary committee.
The parliamentary committee is constituted by the Speaker. Half the members of the committee come from the treasury bench while the other half from the opposition parties.
In Nepal, the president, following recommendation of the constitutional council led by the prime minister, appoints the CEC and election commissioners.