EC Appointments: Nobody wants hands tied

It seems whoever becomes head of government, s/he wants to enjoy absolute power in forming the Election Commission. Reluctance of successive governments to make a law on the formation of EC indicates so.

The article 118 (1) of the constitution categorically says, "The appointment of the chief election commissioner and other election commissioners shall, subject to the provisions of any law made in that behalf, be made by the President."

The language of the article suggests enactment of the law is mandatory. But no successive governments paid heed to the constitutional provision. They made no move in line with the constitutional provision in the last four and a half decades.

Even a move by ATM Shamsul Huda-led Election Commission for the enactment of the law to end controversies over the formation of EC did not get support from the government.  

The reason is clear.

If the law is made specifying a procedure and criteria for appointment to the EC, it will curtail the absolute power of the head of government to pick persons of his/her choice for the formation of the commission. 

All signs now suggest no possibility of enacting the law before the formation of the new EC in February.

In the absence of the law and any other mechanism, the president will appoint CEC and other election commissioners on the advice of the prime minister.

WHO DETERMINES THE APPOINTMENTS?

To reject Khaleda Zia's proposals for constituting the next EC on the basis of consensus among political parties, Prime Minister Sheikh Hasina on Saturday referred to the president's power to form the EC.

Her statement that "she [Khaleda] has made her proposals; now she can tell the president about it, and he'll make the decision … we've nothing to say" does not match with the constitutional provision.

If one reads only the Article 118 (1), s/he may get an impression that the president has absolute jurisdiction over the formation of the EC as, according to this article, the CEC and other election commissioners will be appointed by the president.

But Article 118 (1) cannot be read in isolation from the constitution's article 48 (3) that clearly says: "In the exercise of all his functions, save only that of appointing the Prime Minister pursuant to clause (3) of Article 56 and the Chief Justice pursuant to clause (1) of Article 95, the President shall act in accordance with the advice of the Prime Minister."

Even in these two cases, his discretionary power is very nominal. Because he has no option but to appoint the leader of the majority party in parliament as the prime minister.

And in case of the appointment of chief justice, the president is expected to appoint the senior most judge of the Appellate Division.

When Article 118 (1) is read along with Article 48 (3), it becomes clear that the president's jurisdiction over the formation of the CEC and other EC members is misconstrued.

As the president must act on the advice of the prime minister, his powers are, in real sense, exercised by the prime minister. The presidency is a ceremonial office with no effective power.   

If no discussion is held as Khaleda proposed, the president will make the appointments based on the choice of the government to form the EC which will conduct the next parliamentary elections in early 2019.  

HOW WERE PAST APPOINTMENTS MADE?

The formation of EC appeared important following the fall of autocratic Ershad regime in December 1990 as election is the only peaceful way to assume state power in democracy.  

But unlike other Saarc countries, including Sri Lanka, the Maldives, Bhutan, Nepal and Afghanistan, no mechanism has been developed to ensure better appointments to form the EC.

The absolute freedom the government enjoys in forming the EC, however, did not yield positive results.

In the last 25 years since restoration of democracy, seven CECs were appointed along with other election commissioners to lead the EC.

Of them, three commissions led by Justice AKM Sadeq, Justice MA Aziz and Kazi Rakibuddin Ahmad were mired in deep controversies.

Justice Sadeq and Justice Aziz were appointed by Khaleda's BNP government and Rakibuddin was appointed by Hasina-led AL government. 

Justice Sadeq-led EC conducted one-sided parliamentary election in February 1996 and Rakibuddin-led EC held January 5, 2014 one-sided election.

Justice Aziz-led EC was unable to hold January 22, 2007 parliamentary election amid a growing political crisis which led to the declaration of the state of emergency.  

Three commissions-led by Justice Abdur Rouf, Abu Hena and ATM Shamsul Huda, constituted by caretaker governments, were successful to hold three parliamentary elections in 1991, in June 1996 and 2008 respectively.

CEC MA Sayed, who was appointed by Hasina-led AL government, was an exception. He was able to hold eighth parliamentary election in 2001.

Amid controversies over the formation of EC, people's confidence eroded in the functioning of the constitutional body which is a crucial institution for holding free and fair elections.

THE HUDA MODEL 

In 2007, CEC Shamsul Huda-led EC drafted proposal for enactment of the law in line with the constitutional provision to ensure formation of EC free from controversies.

It proposed formation of EC based on political consensus through the top parliamentary body -- the Business Advisory Committee.

According to the proposal sent to the government, a search committee will be formed to nominate panel of candidates after examining their qualifications in line with law.

The outgoing CEC will be convener of the committee which will consist of a High Court judge nominated by the chief justice, chiefs of public service commission and anti-corruption commission and comptroller and auditor general.

The search committee will prepare the panel proposing three names against each of the posts. Then the panel will be sent to the office of the prime minister to place it before the Business Advisory Committee of the Jatiya Sangsad.

The top parliamentary body led by the Speaker consists of prime minister, leader of the opposition and senior MPs from both ruling and opposition benches. On scrutiny, the parliamentary body will finalise the panel and forward it to the president who will make the appointments.

WHY NEW EC SO IMPORTANT?

In absence of any law and mechanism, how the new EC will be constituted now depends on Prime Minister Sheikh Hasina.

If she advises the president, the head of state will open dialogue with political parties seeking their opinions on the formation of the new EC. If she wants, her government may move to enact a new law in the current session of parliament.

If she does not prefer any of the options, she can advise the president to appoint persons of her choice to constitute the EC.

In absence of the non-partisan election-time government, the EC has to play most pivotal role to ensure free and fair elections. 

Therefore, formation of a non-controversial EC matters much to restore people's confidence in the electoral system and in the government as well.

If new EC mires in controversy at its birth, it may find it difficult to ensure congenial atmosphere for holding free and fair parliamentary election under a partisan government.