What can we expect from the Search Committee law?
The sudden approval of a draft Election Commission law by the cabinet certainly gives the government and the ruling party a powerful public relation tool, as they can claim they have done what no other party even attempted in the last 50 years. Why wouldn't they? It was, after all, portrayed by some eminent civil society voices as the most important necessity to restore trust in our election management system.
Quite a good number of political parties also demanded a legal instrument for the formation of the next Election Commission. However, it has to be noted here that most of these parties either have been or still are in partnership with the Awami League. And, regrettably, these parties have never raised any urgency for such a law before in their 13-year-long partnership in running the country. It seems that they have regained their conscience only after the outside world—the Biden administration, in particular—started exerting visible pressure for restoration of democracy in Bangladesh.
There is no doubt that a legal framework for constituting an Election Commission and making them independent and sufficiently empowered is quite crucial. But in absence of a broader political consensus, especially in the present composition of parliament, no legislation can bring an end to the ongoing political crisis stemming from mutual distrust and hatred among two major contenders of power. In reality, there are only seven representatives from the ruling party's real rival, the BNP, whose critical voices are almost lost in the crowd. No one needs a reminder that the official opposition in Jatiya Sangsad, the Jatiya Party, had a seat-sharing arrangement with the Awami League in the last election and wanted to be in the government, but was forced to roleplay in the opposition bench. Besides, there's the Damocles' Sword: Article 70 of the constitution makes it impossible for any member of parliament to act according to his/her conscience or the will of their constituents.
There is no alternative to extended and exhaustive consultations and intense debate for a good piece of legislation. However, records of our parliament show exactly the opposite. Who can forget the passing of the Digital Security Act (DSA), ignoring all suggestions, demands and opposition, despite the promises made to the Editors' Council by three ministers that their concerns would be addressed? Now, the government admits that there have been abuses and misuses of the DSA, and a revision of it is being considered. Had those concerns about repressive provisions been redressed beforehand, writer Mushtaq Ahmed might be alive today. The DSA is not an exception; ignoring critical opinions in formulating legislations and policies has become a trademark of the current government.
Hence, there's apprehension that the new law on Election Commission would be a mere formalisation of the practice that was followed in formation of the previous two commissions. Some critics predict even worse. Though the government is yet to make the draft law public, it has been reported in the media that one provision in the draft grants blanket immunity from future legal challenges against the formations of commissions led by Kazi Rakibuddin Ahmed and KM Nurul Huda. It clearly reflects a political motive behind the government's unanticipated U-turn on the issue. We were told by the law minister recently that his government had no wish to make any law unilaterally. He said, "The law should be acceptable to all the parties to make it universal, and not to just one party." Is a universal law possible without any dialogue and agreement with the main challenger of the ruling party, the BNP? And can it be done in a forum which is ridiculously overwhelmed by the ruling party and its allies?
In our 50-year history, the best elections that we have had, and that were recognised both at home and abroad, were the ones based on political consensus. That consensus about the composition of the caretaker government provided the basis of independence and neutrality of the election commissions. Problems with the Election Commission were by and large a sideshow of the conflict over the caretaker government. Unless the issue of the governance during the electioneering is resolved, no law can guarantee the required independence of the commission as an institution, and restore peoples' trust in the electoral process.
According to news reports, the proposed draft is limited in its scope within the process of recruiting a chief and commissioners of the Election Commission, but nothing about its size, powers and independence. It is, therefore, appropriately described by a former election commissioner, Sakhawat Hossain, as not being about an Election Commission, but for a search committee.
The draft proposes formation of a six-member Search Committee headed by a judge of the Appellate Division, nominated by the chief justice. The other members will include a judge of the High Court, the comptroller and auditor general, chairman of the Public Service Commission, and two eminent persons nominated by the president. Given the state of partisan politicisation of every state institution, it is hard to comprehend how such a Search Committee would be able to nominate independent-minded and non-partisan members capable of earning the trust and respect of all stakeholders. Under the existing constitution, can our president nominate anyone for the Search Committee without the advice of the prime minister?
Kamal Ahmed is an independent journalist and writes from the UK. His Twitter handle is @ahmedka1