In fact, the majority of the population in the country, as well as foreign observers have opined that unless reconstitution and reformation of the Election Commission is carried out the election will be a farce, and not credible. Fortunately, the Advisers' Council of the CTG has realised this, and started to work on this issue.

Apparently, the task of reconstitution of the EC seems to be a complex one. First of all, there is the changed stance of the BNP alliance which, during the dialogue with the 14-party alliance, agreed to change the EC, but is now opposing its reconstitution. It is assumed that the chief election commissioner is being stubborn about not resigning because he is backed by the BNP-alliance.

Resignation from this key electoral office, for the greater interest of the nation, is not unprecedented in Bangladesh. For instance, before the 1991 parliamentary elections, the then CEC, Justice Sultan Hossain Khan, resigned because of severe opposition from the major political parties.

Similarly, former CEC, Justice AKM Sadek, who conducted the February 15 parliamentary election in 1996, also resigned upon request of the then caretaker government. Already, Justice Aziz has refused to resign at the request of some members of the Advisory Council of the CTG.

Under these circumstances, the CTG must take some appropriate measures to reconstitute the CEC. On the other hand, some people are saying that the CEC is a constitutional post, and his removal is impossible, unless he resigns willingly, according to Article 118(6) of the constitution.

But this is not absolutely true. Our constitution has empowered the government with some avenues to remove the CEC, if necessary. Let us investigate the possible options for such removal of the CEC, as endorsed by the constitution.

Option One: Article 118(5) of the constitution states: "An Election Commissioner shall not be removed from the office except in like manner and on the grounds as a judge of the Supreme Court." How to remove a judge of the Supreme Court is ascribed in Article 96, which suggests that the president should refer to the Supreme Judicial Council for possible removal of a judge of the Supreme Court, or any other key constitutional official, following Articles 96(4b), 96(5) and 96(6) as stated below:

Article 96(4b) The function of the council shall be to inquire into the capacity or conduct of a Judge, or of any other functionary who is not removable from office except in like manner as a Judge.

Article 96 (5) Where, upon any information received from the Council, or from any other source, the president has reason to apprehend that a Judge-

(a) may have ceased to be capable of properly performing the functions of his office by reason of physical or mental incapacity; or (b) may have been guilty of gross misconduct, the president may direct the council to inquire into the matter and reports its finding.

Article 96(6) If, after the inquiry, the Council reports to the president that, in its opinion, the Judge has ceased to be capable of properly performing the functions of his office, or has been guilty of gross misconduct, the president shall, by order, remove the Judge from the office.

The formation and functionaries of the Supreme Judicial Council has been explicitly stated in Article 96(3) and Article 96(4).

So, if the CEC continues to be reluctant to resign voluntarily then the president may refer the matter to the Supreme Judicial Council for its opinion.

Obviously, for referring the case to the Supreme Judicial Council, the president should have some allegations against the CEC. In fact, the allegations against the present CEC are manifold. Some of the misdeeds committed by the CEC are cited below:

• The present Election Commission has prepared a voter list that is in contravention of court order and that is riddled with errors.
• By appointing about 300 partisan election officers, the CEC has shown absolute loyalty to a certain political party.
• Before retiring as a justice he held the offices of the two key positions of the state, (the CEC and a justice of the higher court) concurrently. This was a clear violation of the constitution. However, the case is under trial.
• It has been questioned whether Justice Aziz is mentally sound enough to discharge his responsibilities properly. In this context, his pretension of being sick and getting "admitted" to a hospital, with a view to avoiding the scheduled interview with some representatives of the EU delegation, can be mentioned.

Option Two: The president alone, for the sake of the continuation of democracy and the aspirations of the common people, can also take the decision on reconstitution of the EC, following the special immunity provided in Article 51(1) which explicitly states that "the president shall not be answerable in any court for anything done or omitted by him in the exercise, or purported exercise, of the functions of his office."

In fact, this immunity had saved president from facing the court when he assumed the post of head of the CTG without exhausting all the constitutional provisions. So, considering the stubbornness of the CEC, the president can remove him for the greater interest of the nation, using his special immunity.

Option Three: To remove the present CEC from his post Article 99(1) of the constitution can also be applied. The article is stated below:

Article 99(1) : "[A] person who has held office as a Judge otherwise than as an Additional Judge shall not, after his retirement or removal there from plead or act before any court or authority or hold any office of profit in the service of the Republic not being a judicial or quasi-judicial office or the office of Chief Adviser or Adviser."

The CEC has recently retired as full-fledged judge of the higher court, and so, according to the above article, he is no longer eligible to continue in the office of the CEC.

The above are some options for a way out of the present impasse. It would be wise for the president to take advice from the experts of the constitution, and to follow the most suitable option to get relief from the present crisis.

Perhaps the most crucial task for the CTG is the reconstitution and reformation of the Election Commission to ensure a free and fair election. Without doing so, and with the present setup of the EC, holding a free and fair election, which is the prime task of the CTG, will not be possible. If the CTG can take the right decisions in this regard it will, undoubtedly, receive the support of the common people of the country.

Md Anwarul Kabir is an educationist and freelance writer.