The Election Commission (EC) has drafted a law titled "Chief Election Commissioner and Election Commissioner (Appointment Procedure) Act, 2011" and started seeking opinion of registered political parties, civil society members, senior journalists and others on it, aiming at its enactment as law of parliament.
The constitution of Bangladesh has neither prescribed qualifications for the appointment as chief election commissioner (CEC) and election commissioners nor fixed the number of election commissioners to be appointed. It has also not prescribed the detailed procedure that would be used in selecting the persons as CEC and election commissioners.
The constitution says that "there shall be an election commission for Bangladesh consisting of a chief election commissioner and such number of other election commissioners, if any, as the president may from time to time direct, and the appointment of the chief election commissioner and other election commissioners (if any) shall, subject to the provisions of any law made in that behalf, be made by the president" [Article 118(1)].
A closer look into this Article reveals that the constitution has made provision for enactment of a law for the purpose. But no such law has been enacted during the last 40 years of independence.
In the absence of a law to regulate the appointments of the CEC and election commissioners, their appointments have been at the pleasure of the government. The successive party governments have generally appointed such persons to these posts as sympathisers to their cause, particularly to influence the general elections to members of parliament.
Besides the party governments, the military usurpers of the state power have used the EC to serve their cause. In order to "obtain their sanction to govern" the generals usurping the state power in the late seventies and early eighties held national referendums and used the EC to bring the results of the referendums in their favour.
The draft law of the EC has 7 sections. Sections 1, 2 and 7 contain routine matters like short title, definitions, etc. of the proposed Act.
Section 3 is the composition of the EC. The draft law proposes that the EC shall consist of one CEC and two Election Commissioners. Of the two Election Commissioners, one shall be female.
We have seen how the immediate past BNP-led alliance government took the advantage of the unspecified number of election commissioners in the constitution to appoint three election commissioners on political considerations.
President Iajuddin Ahmed, who assumed the charge of the chief adviser of the caretaker government in October 2006, appointed two more election commissioners in November 2006 on political consideration. With six election commissioners, the Aziz-led EC became the largest one ever in Bangladesh.
It may be relevant to mention here that the election commission of India consists of one chief election commissioner and two election commissioners. And until October 1989, there was just one chief election commissioner.
The composition of the EC suggested in the draft law is reasonable.
Section 4 prescribes qualifications for these appointments. Administrative experience, honesty, righteousness, uncompromising neutrality and knowledge in legal matters have been suggested as necessary qualifications for CEC and election commissioners.
The suggested qualifications are reasonable and acceptable.
Section 5 suggests a five-member search committee headed by the CEC. The other members of the committee include a high court division judge nominated by the chief justice, chairman of the anti-corruption commission, chairman of public service commission and the comptroller and auditor-general.
The functions and responsibilities of the search committee include searching out persons suitable for appointment as CEC and election commissioners and prepare a three-member panel for each of the vacant posts, and send such panels to the prime minister's office for examination and consideration of the parliament's business advisory committee (BAC) headed by the speaker.
A closer look into the suggested procedure shows that the search committee will be responsible for seeking out persons suitable for appointment against the vacant posts of election commissioners, which also includes the post of the CEC.
In South Africa, such functions are performed by "a panel of representatives from the other institutions supporting democracy." The chairman of the constitutional court heads the panel. The search committee suggested in the draft law may be headed by a judge of the appellate division nominated by the chief justice. In that case, the chairman of the human rights commission, Bangladesh may replace the high court division judge as a member of the committee.
The draft law also suggests that the president will appoint anyone from the panel finalised by the BAC as election commissioner or CEC, as the case may be. We know that because of the constitutional obligation, the president has no choice but to approve appointment of the person recommended by the PM from the panel. So, the political bias in the appointments may not be averted.
The law should provide that the BAC will finalise the name of those appointed as CEC or election commissioner from the panel prepared by the search committee in its meeting attended by the PM and the leader of the opposition or their nominees. In that case, there will be no scope for recommending a different name from the PMO. The approval of the president will thus become a routine matter.
The tenure of appointments of the incumbent CEC and the two other election commissioners expires early next year. The EC deserves thanks for taking the initiative for the enactment of a law that regulates the appointments of the CEC and election commissioners. If the draft law is enacted by the parliament with suitable amendments, it will reduce politicisation to these posts to the minimum.
We hope that both the ruling AL and the opposition BNP will agree to the enactment of the law. The onus, however, primarily lies with the ruling AL. If the government and the opposition can reach a consensus for making appointments to the posts of the CEC and the election commissioners, it will help ease confrontational politics of the two major parties to a considerable extent.
The writer is Former Secretary.