EC infighting is unwarranted and unlawful
More seriously, the CEC's decision appears to be unlawful. The existing law prohibits the CEC, or any Commissioner, from acting alone without the authorization of the Commission. The Appellate Division of the Bangladesh Supreme Court has also addressed this issue and stated clearly that the EC is a composite body, and an individual Commissioner can only act when he/she is authorized by the Commission itself. We are surprised that our CEC, despite being a jurist himself, ignored the law and also the verdict of the highest court of the land.
Legal basis of the EC
The EC was established under Article 118(1) of our Constitution, which states: "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." Thus, it is a constitutional body entrusted with the responsibility of holding elections.
For all latest news, follow The Daily Star's Google News channel. The Chief Election Commissioner and Election Commissioners (Remuneration and Privileges) Ordinance, 1983 deals with the salary, allowances, and privileges of the Election Commissioners, but it is silent with respect to the decision making procedure within the Commission. Perhaps the lawmakers thought it unnecessary and perhaps even improper to dictate how the EC should transact its business because of their regard for the sagacity and wisdom of the individuals that they had in mind for the Commission. Nevertheless, Article 3(3) of the Ordinance recognizes the equal standing of all Commissioners and states that "the term 'Election Commissioner' includes the Chief Election Commissioner."
Although the 1983 Ordinance is silent about the manner of decision making, The Representation of the People Order, 1972 clearly states that the CEC, the designated Chairman of the EC, or any other individual member of the Commission, requires authorization from the EC itself to act on its behalf. Article 4 of the Order states: "The Commission may authorize its Chairman or any of its members or any of its officers to exercise and perform all or any of its powers and functions under this order."
We can also refer to the relevant Indian law which more explicitly makes it clear that the CEC does not enjoy a status superior to that of the EC. Chapter III of The Chief Election Commissioner and Other Election Commissioners (Conditions of Service) Amendment Ordinance, 1993 of India clearly states:
"Transaction of Business of Election Commission
9. The business of the Election Commission shall be transacted in accordance with the provisions of this Act.
10. (1) The Election Com-mission may, by unanimous decision, regulate the procedure for transaction of the business as also allocation of the business amongst the Chief Election Commissioner and other Election Commissioners. (2) Save as provided in sub-section (1) all business of the Election Commission shall, as far as possible, be transacted unanimously. (3) Subject to the provisions of the sub-section (2), if the Chief Election Commissioner and other Election Commissioners differ in opinion on any matter, such matter shall be decided according to the opinion of the majority."
Court decisions
In addition to the electoral laws, judicial decisions also clearly forbid the CEC from making unilateral decisions. For example, in Jatiya Party vs Election Commission (53 DLR (AD) (2001)), the Appellate Division of the Bangladesh Supreme Court reaffirmed that for exercising powers and functions of the EC (under The Representation of the People Order, 1972), "the Acting Chief Election Commissioner must get authorisation from the Commission itself, otherwise his action under the Order will be coram non judice and without jurisdiction." This is clearly an unequivocal interpretation of the law by the highest court of the land regarding the decision making procedure within the Commission.
The Indian Supreme Court opinion on this issue is particularly instructive. In T.N. Session v. Union of India ((1995) 4 SCC), the Indian Supreme Court found: "By clause (1) of Article 324, the Constitution-makers entrusted the task of conducting all elections in the country to a Commission referred to as the Election Commission and not to an individual. It may be that if it is single-member body the decisions may have to be taken by the CEC but still they will be the decisions of the Election Commission. They will go down as precedents of the Election Commission and not the individual. It would be wrong to project the individual and eclipse the Election Commission. Nobody can be above the institution which he is supposed to serve. He is merely the creature of the institution, he can exist only if the institution exists. To project the individual as mightier than the institution would be a grave mistake. Therefore, even if the Election Commission is a single-member body, the CEC is merely a functionary of that body; to put it differently, the alter ego of the Commission and no more. And if it is a multi-member body the CEC is obliged to act as its Chairman...the function of the Chairman would be to preside over meetings, preserve order, conduct the business of the day, ensure that precise decisions are taken and correctly recorded and do all that is necessary for smooth transaction of business...He must so conduct himself at the meetings chaired by him that he is able to win the confidence of his colleagues on the Commission and carry them with him. This a chairman may find difficult to achieve if he thinks that others who are members of the Commission are his subordinates." Thus building consensus rather than conflicts is the primary role of the CEC.
To conclude, it is clear from the relevant laws as well as from court decisions from Bangladesh and abroad that the status of the CEC is not above the other Commissioners. The Election Commission's decisions must be made unanimously, and in the case of differences of opinion, on the basis of the opinion of the majority. Yet, our CEC has been acting as if he is above the other Commissioners and also above the law, and has made important decisions regarding electoral rolls, ignoring the objections of his other two colleagues. (Curiously, the CEC is also reported to be happy with the working of the EC secretariat while there is widespread demand from many quarters for its administrative and financial independence.) These are unwarranted developments and they clearly raise serious questions about the transparency of the Commission. It also seriously erodes and undermines the credibility of the Election Commission -- a very important constitutional body entrusted with the responsibility of holding free, fair, and impartial elections.