Though there is a constitutional obligation to enact a law for appointing the Chief Election Commissioner (CEC) and Election Commissioners, there has been no initiative over the last four decades to do so, leaving a scope for controversies over the formation of the Election Commission (EC). Talking to UNB, constitution experts Barrister M Amir-ul Islam and Dr Shahdeen Malik, and election experts Dr ATM Shamsul Huda and Dr Tofail Ahmed said formation of the EC ignoring the constitutional requirement is not only a ‘bad practice, but also illegal’. They said anybody can challenge the legality of the Commission formed without fulfilling the constitutional obligation. Huge discussions and debates by political parties and other different stakeholders now rage on ahead of formation the new EC as the five-year tenure of the incumbent Commission, led by Kazi Rakibuddin Ahmad, expires on February 8, 2017. Barrister M Amir-ul Islam, who is a member of the 1972
Constitution Drafting Committee, said enactment of the law for the recruitment of the CEC and Election Commissioners is a constitutional requirement. He said it cannot be accepted that the EC will be constituted repeatedly ignoring the constitution. “The law must be enacted as per the constitution.” Former CEC Dr ATM Shamsul Huda said, “Those who framed the Constitution made it mandatory to enact the law. So, this is an obligation. If anyone files a writ petition with the court against the current system of recruitment, its legality will be questioned.”
He said the law is also needed to specify a certain criteria for the persons who are being appointed to such important posts. “If there’s no set standard, it may be arbitrary appointment.” Besides, Huda
said, the absence of the law is one of the key reasons why the appointments get controversial.
Article 118 (1) of the Constitution states, “There shall be an Election Commission for Bangladesh consisting of the Chief Election Commissioner and not more than four Election Commissioners 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.” The ex-CEC said, “If there’s a law, all particularly political parties will feel relieved, and the Election Commission may face less criticisms from political parties.”
The Election Commission, headed by Dr Huda, drafted a proposed appointment law titled ‘Chief Election Commissioner and Election Commissioners (Appointment Procedure) Bill 2011’ on the basis of a consensus among all the political parties, and placed it to the government. But, it was not considered over the last five years.
Echoing Dr Huda, noted lawyer Dr Shahdeen Malik said, “If anyone goes to the court challenging the possible appointment without enactment of the law, I think it’ll create a problem.” He, however, said the previous appointments made to the CEC and other commissioner posts would not be illegal as no one brought the issues to the court in the past. “It’ s like caretaker government issue. When it was brought to the court, the caretaker government system was declared illegal and ultra vires to the Constitution,” he added.
The law is essential to make the appointment process transparent and prevent abuse of power and whimsical recruitment. “There’s such law in all Saarc member countries except India,” Shahdeen Malik pointed out. Election expert Tofail Ahmed said it is illegal to appoint the CEC and other commissioners without enacting the law since it is constitutional obligation. He said the law must be formulated on the basis of a political consensus to remove controversies and ensure transparency.
As per the proposed law of the Huda Commission, there shall be a five-member search committee with the outgoing CEC as its Convener to propose three names against each vacant post. And the President will appoint anyone from the three names against each post after scrutiny of the Parliament Business Advisory Committee. The four other members will be a High Court justice nominated by the Chief Justice, the Chairman of Anti-Corruption Commission, the Chairman of Bangladesh Public Service Commission and the Comptroller and Auditor General. In 2012, late President Zillur Rahman formed a search committee for the first time to find out names for appointment to the posts of CEC and other election commissioners, which was not widely accepted to many political parties.
