CE training right: the research committee obtains legal cover

Almost 50 years after the constitution mandated the enactment of a specific law for the formation of the electoral commission, the government finally approved the bill to appoint the chief electoral commissioner and other commissioners through a search committee.

The six-member committee, which will be headed by a judge from the Supreme Court’s appellate division, will recommend names to the president for nominations, said Cabinet Secretary Khandker Anwarul Islam, adding that the judge would be nominated by the chief judge.

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The law, once in force, would provide legal protection to ECs formed through search committees in the past. These would be considered to have been formed under the law, Anwarul said in an interview with reporters after the cabinet meeting yesterday.

The term of the current EC, led by CEC KM Nurul Huda, expires next month.

The secretary did not say whether the next EC would be formed under the proposed law, but ruling Awami League sources said the next search committee would be formed under it.

If the bill is not passed in the current session of parliament, President Abdul Hamid could issue an ordinance to make it law allowing for its speedy implementation, said a member of an AL delegation, who participated in a dialogue with President Abdul Hamid on the EC. training yesterday.

The top AL leader, wishing not to be named, said the president thanked the ruling party for bringing the bill forward.

He quoted the president saying that since almost all political parties want a specific law for the formation of the EC, it would now be easier for him to form the search committee.

At a press conference after the dialogue, AL Secretary General Obaidul Quader said his party was proposing to enact a law to appoint the CEC and other commissioners.

Hoping that the formulation of the law would be possible in a short time, he said: “Come and see, nothing is impossible.”

The President held dialogue with 25 of the country’s 39 registered political parties. Almost all suggested the enactment of a law for the formation of the CE.

The dialogue, which began on December 20, ended yesterday with the participation of AL.

Sources, meanwhile, said the decision to enact the law was taken as the government wanted to avoid possible controversy over the issue.

Election experts and legal scholars believe the move was nothing more than an attempt to give legal cover to the ECs, which were formed through search committees.

They also raised questions about transparency in appointing the CEC and other commissioners in the future.

“It’s more like 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?” asked former Election Commissioner Brig Gen (Retired) M Sakhawat Hossain in a conversation with The Daily Star.

Echoing his statement, Badiul Alam Majumder, Secretary of Shushashoner Jonno Nagorik (Shujan), said, “Current and previous commissions formed through search committees have destroyed the electoral system of the country.”

The EC drew criticism from opposition parties, election observers and members of civil society over the holding of national elections in 2014 and 2018.

Article 118(1) of the constitution says categorically: “The appointment of the chief electoral commissioner and other electoral commissioners shall, subject to the provisions of any law passed in respect thereto, be made by the president.”

He suggests that the law is mandatory for the formation of the EC, but no government had paid attention to it for the past five decades.

In the absence of such a law, there were no specific criteria for the appointment of electoral commissioners. What will lead to their disqualification was also unclear.

As a result, most governments in the past have formed ECs by appointing people of their choosing, experts said.

To eliminate controversies, a former EC, led by CEC Shamsul Huda, drafted a proposal in 2007 to enact a law in line with the constitutional provision. This decision did not receive the support of the government at the time.

In 2012 and 2017, the president chose the CEC and four election commissioners after search committees suggested names for nominations.

Yesterday’s cabinet meeting, chaired by Prime Minister Sheikh Hasina, approved the draft ‘Appointment of Chief Electoral Commissioner and Commissioner of Elections Act 2022’.

Responding to a question, the cabinet secretary said he hoped it wouldn’t take long to turn the bill into law.

THE RESEARCH COMMITTEE

Under the proposed law, the search committee will include a judge from the High Court Division, the comptroller and auditor general, the chairman of the Bangladesh Public Service Commission, two other people appointed by the president.

The 2017 search committee was formed according to the same structure. In 2012, the president formed a four-member search committee to appoint the CEC and other commissioners.

The proposed law stipulates certain eligibility criteria – the chief and other commissioners must be citizens of Bangladesh, at least 50 years of age and have at least 20 years’ experience in government, semi-government, judicial or important private interests, the cabinet secretary said.

A former head of EC can no longer be considered for the same position. However, other current or former electoral commissioners can be appointed as CECs, he said.

Sakhawat Hossain said that if the names recommended by the search committee are not discussed in parliament, the EC will not be formed by consensus.

“So for me, it’s not a full-fledged law,” he said.

Badiul Alam said the search committee should make the names public twice – once when the committee will mainly review the names and then when it submits them to the president.

“There must be a clear explanation of why these people were chosen. The whole exercise will be wasted if transparency is not ensured,” he added.

Last year, Shujan prepared a draft appointments bill and submitted it to the Minister of Justice.

Prominent jurist Shahdeen Malik said representation from the three main political parties on the search committee was necessary because political parties were the most important stakeholders in any election.

“Finally, the search committee should not send a list with the names of more than seven people for the final appointment of the CEC and four commissioners,” Shahdeen said.

He said the search committee should work transparently and always keep the public informed of names.

“Only then will such a process make the electoral commission more acceptable to the people,” he added.

PRACTICE IN SOME OTHER COUNTRIES

In India, the president appoints the CEC and other electoral commissioners on the advice of the cabinet headed by the prime minister. The Council of Ministers collectively advises the President on 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 Maldives – apparently have a more developed mechanism for constituting their EC through consultation and review.

In Pakistan, for example, the prime minister, in consultation with the leader of the opposition in the National Assembly, submits three names for the appointment of each commissioner to a parliamentary committee.

The parliamentary committee is constituted by the President. Half of the committee members are from the Treasury bench while the other half are from the opposition parties.

In Nepal, the president, on the recommendation of the constitutional council headed by the prime minister, appoints the CEC and election commissioners.