Proposed EC bill doesn’t ensure one’s impartiality
Dr Badiul Alam Majumder, secretary of Shushashoner Jonno Nagorik (SHUJAN), discusses how the new Election Commission bill undercuts the ultimate exercise of democracy, in a conversation with Zyma Islam of The Daily Star.
Why are our Election Commissions deemed partisan?
Certain laws are only implemented to protect the interests of the current regime. A sheer lack of transparency led to the formation of the current and immediate past election commissions, such as the 2012 and 2017 gazettes issued by President Zillur Rahman and President Abdul Hamid, respectively, which decreed that the election commissioners would be chosen by a search committee. The criteria that the search committees had used for selecting the commissioners were such that anyone would fit the bill.
The criteria included being 50 years of age, having 20 years of experience in important government or judicial service, etc. The disqualifications included having foreign citizenship, being sentenced for more than two years for criminal offence, etc. There are no mechanisms in place to test the history of honesty, courage and impartiality of the candidate. This paved the way for the appointment of our current chief election commissioner (CEC), KM Nurul Huda.
Huda was a bureaucrat of the 1973 batch—the batch that was appointed without any rigorous exams, just based on allegiances. Throughout his career, he was viewed to be anti-BNP. As a result, he was victimised by the BNP when they came to power in 2001. They sent him into forced retirement when he was only a joint secretary, and he had to take them to court. He won the case, but the BNP government made him officer-on-special duty (OSD). After the Awami League came to power, he was made a secretary with retroactive effect. If the search committee had worked properly and transparently, people would have realised that he would have an axe to grind against the BNP.
The search committee itself needs to comprise fair and impartial members, and the president's gazettes or the proposed Election Commission bill do not ensure that. The search committee right now is made up of two sitting judges, the chairperson of the Public Service Commission, the auditor general, and two civil society members. All of these posts would have people who are either direct beneficiaries or not independent.
How do we ensure that the criteria of a fair, impartial commissioner can be met?
This cannot be done by setting any criteria. These need to be met by hosting public hearings and people speaking up. The committee is there to sieve through and find out what the truth is. The critical issue here is transparency and people's voice. The names being considered and recommended should be made public. Political parties should not be the only ones giving names. Anyone should be able to nominate a person as an election commissioner. Based on the initial scrutiny, the search committee would come up with 20 people, of whom five would be women, and host public hearings for feedback. People with something to hide would automatically stay away, rather than face public scrutiny. Later, they would send seven names to the president along with a report, and make both the documents public.
We wanted one to two months for the process. But according to the law, the government will have only 10 working days to do this. This is nothing.
The search committees that created the incumbent and immediate past Election Commissions never disclosed the names of their proposed candidates. Not even a right-to-information request yielded that. This lack of transparency enables the president to ignore the search committee's recommendations. According to Article 48 (3) of the constitution, the president's decisions must be as per the advice of the prime minister. If no one knows the names, there is no guarantee whether the commission would be formed as per the prime minister's choice.
The search committee, too, needs to be constituted differently. The search committee we proposed would comprise a retired justice of the Appellate Division, and three parliamentarians—of whom one is nominated by the leader of the House, one by the leader of the opposition, and the third by the third largest party in parliament. There would also be one constitutional position, one media personality, and one member of civil society. The media personality and the civil society member would be selected by the other five members of the search committee, unlike what the proposed EC bill stipulates. This would ensure that there is one independent voice or more.
Can you reflect on the major points of failure of this Election Commission and the past?
Looking back, some of the most critical moments of failure of the current commission were when they refused to take responsibility for election-time violence, allowing law enforcement agencies to wilfully repress the opposition candidates and their supporters, taking no action against election offences, and ballot stuffing, as revealed by the BBC, TIB, and centre-wise voting records. The Nurul Huda commission had said they would not use the electronic voting machines (EVMs) without the consensus of political parties. But he changed his mind and went ahead with EVMs in spite of a lot of resistance. Jamilur Reza Chowdhury was the head of the technical committee, and he refused to sign the recommendation to buy EVMs without voter verifiable paper audit trail (VVPAT).
SHUJAN analysed centre-wise data from the 11th parliamentary elections and found 213 centres with over 100 percent votes. In more than 1,200 centres, BNP had zero votes, and Awami League had 100 percent votes in 600 centres. The local government elections have been rife with violence, bloodshed and people dying, but the commission has squarely evaded responsibility, claiming that it was the administration's fault. A total of 42 of us petitioned the president in December 2020 and asked him to constitute a supreme judicial council to investigate the allegations of corruption and gross misconduct against the commissioners, but to no avail. It is clear that the commission is partisan and has committed fraud with the citizens.