Is this Election Commission any more acceptable?

Are these calls for resignation justified? There appear to be several reasons for these calls. First, the appointments of all three present Commissioners are controversial at best. Second, the Commission appears to have willfully and blatantly violated the directives of the High Court. Third, the actions and behaviour of some of the Commissioners also appear to be in contempt of court, and indeed the Court has asked them to show cause as to why they should not be held in contempt. Fourth, it is widely believed that the Commission so far has acted against the best interests of the general public. Fifth, as the head of the EC, the CEC clearly has failed to provide the necessary leadership of this important constitutional body which is entrusted with the responsibility of holding free, fair and impartial elections. Thus, the Commission appears to have lost the public confidence and is continuously subjected to ridicule and derision.

Controversial appointments
A serious constitutional issue is involved in the appointment to the EC of both Justice Aziz and Justice Mahfuzur Rahman. Justice MA Aziz, an advocate of the Supreme Court of Bangladesh, was appointed Additional Judge of the High Court Division in 1996. He was confirmed as a Judge of the High Court Division in 1998 and was elevated to the Appellate Division in 2004. As a Judge, Justice Aziz's duties are purely judicial and he took an oath under Article 148 of the Constitution to: discharge the duties of his office faithfully according to law; to preserve, protect and defend the Constitution and the laws of Bangladesh; and to do right to all people according to law without fear and favour, affection or ill will.

In May 2005, Justice Aziz was appointed the Chief Election Commissioner. “The functions of the Election Commission are essentially administrative but there are certain adjudicative and legislative functions as well.” (T.N. Session v. Union of India (1995) 4 SCC) The CEC's nature of duties are essentially executive and administrative not judicial and Justice Aziz had to take a different oath of office. By taking the second oath, Justice Aziz can no longer claim to be bound under the first oath, and according to legal experts, ceases to be a Justice of the Appellate Division, although he has made statements that he would return to the bench if he ceases to be the CEC. Justice Aziz should not be able to return to the bench as he cannot simultaneously hold two constitutional offices. In other words, Justice Aziz's being both a Justice of the Appellate Division and the CEC at the same time appear to be unconstitutional.

More importantly, Article 94(2) of the Constitution requires that in accordance with the terms of his appointment as a Judge, Justice Aziz is “to sit only in the Appellate Division” until “he attains the age of 67 years” or “he is removed from the office” under Article 96 of the Constitution, and independently exercise “judicial functions.” Thus, a Judge should be ineligible to assume any other office while being a Judge.

Furthermore, according to Article 118(2)(a) of the Constitution, “a person who held office as Chief Election Commissioner shall not be eligible for appointment in the service of the Republic.” Similarly, according to Article 99(1) of the Constitution, “a person who has held office as a Judge ... shall not, after his retirement or removal therefrom ... hold office of profit in the service of the Republic not being a judicial or quasi-judicial office or office of the Chief Adviser or Adviser.” Thus, what Justice Aziz cannot do after retirement or removal, he cannot do while in office as a Judge under oath. The restrictive provision of Article 99(1) of the Constitution must also be applicable in the case of Justice Mahfuzur Rahman's appointment as an Election Commissioner.

There are thus a number of grounds to argue that the appointments of Justice Aziz and Justice Rahman to the EC violate the Constitution. On these very grounds, a writ petition was filed by three lawyers challenging Justice Aziz's appointment as the CEC last year (Md. Ruhul Quddus and others vs. Mr. Justice MA Aziz and others, Writ Petition No. 3818 of 2005) and the Court issued a rule nisi on the respondents, including the Ministry of Law. Unfortunately the High Court benches due to hear this matter were suddenly deprived of their jurisdiction to do so, and consequently it is now virtually impossible to have the matter heard by any Court before the retirement of Justice Aziz from the Appellate Division at the end of June.

Justice Aziz's appointment as the CEC is also untenable on ethical considerations. In the recent proceedings on the electoral roll issue before the Appellate Division, his colleagues in the bench had to sit in judgment on his appeal and at one point they even issued a suo moto contempt rule on him. This was at best an awkward situation, the avoidance of which must have been the original intent of Articles 118(2)(a) and 99(1) of the Constitution. Thus, the appointment of Justice Aziz and Justice Rahman to the EC violated not only the letter, but also the intent of the Constitution.

The appointment of Mr. SM Zakaria to the EC is most controversial. As the Secretary to the Commission, he has been accused of notoriously partisan behaviour and his non-cooperation with the former CEC is well known. In fact, it is widely viewed that as the Secretary he was responsible for much of the hullabaloo involving the EC. Thus, his elevation to the Commission was made with mischievous intentions and created further opportunity to call into question the very integrity of the institution itself.

Defying the High Court judgment
Judgments passed by the High Court have the force of law and they, according to Article 111 of the Constitution, are binding on all concerned. Furthermore, Article 112 enjoins all authorities, both executive and judicial, to implement the judgments of the higher Courts. Unfortunately, our CEC and his other colleagues in the Commission have clearly failed to date to take necessary steps to implement two High Court judgments. More seriously, the Commissioners took public positions that they are not even obliged to do so a position which may ultimately be found to be contemptuous of the Court.

In May 2005, the High Court Division of the Bangladesh High Court passed a historic judgment recognizing the voters' right to information with regard to the background and antecedents of candidates running for parliament. In Abdul Momen Chowdhury and others vs Bangladesh, the Court specifically directed the EC to collect, with nomination paper from each parliamentary election candidate, the following information in the form of an affidavit to be sworn by each: (a) academic qualifications with certificates; (b) any pending criminal accusations; (c) any records of criminal cases and results; (d) the candidate's profession/occupation; (e) sources of the candidate's income; (f) description of the role she/he played in fulfilling her/his commitment to the people, if the candidate was an MP before; (g) description of assets and liabilities of the candidate and her/his dependents; and (h) particulars and amounts loans taken from banks and financial institutions personally, jointly or by a dependent, or bank loans taken by companies from Banks where the candidate is the chairman/managing director/director. The EC was further directed to disseminate the information through the mass media. These directives were intended to empower voters with information about candidates as the “people have a right to know and such right is included in the right to franchise.”

The EC has the solemn duty to judiciously and effectively implement both the letter and intent of the judgment in order to help voters make informed choices during elections. But, for reasons unknown, the EC failed to implement this seminal judgment fully and effectively, blatantly denying the people's right to know information about their future representatives. In the last five by-elections since the judgment, the EC merely went thorough the motions of implementation by issuing circulars requesting to Returning Officers (ROs) to do so. It failed to make the affidavits public despite formal requests by Shujan, a citizens' group committed to good governance, and also take actions against candidates hiding or providing false and misleading information. It also failed to disclose the income and wealth statements and tax returns submitted by candidates under section 44AA of the Representation of People Order1972 (RPO), even though we, on behalf of Shujan, made formal requests under section 44D(2) of the RPO. The EC and the ROs even failed to acknowledge our request, let alone give us the information, clearly violating the provisions of the RPO.

Mores seriously, the CEC took the public position that the High Court directives requiring disclosures are directory rather than mandatory as the judgment provided no consequences for non-compliance. According to experienced jurists, Court judgments are directory only in the cases of interpretation of statutes. Even in interpreting statutes, Courts can hold that a judgment is mandatory for the concerned parties by specifically saying so or providing adverse consequences for non-compliance. Otherwise the judgment is directory. On the other hand, all other Court decisions are binding on the parties to the proceedings and are therefore mandatory. Thus, the CEC appears to have willfully misled the general public to justify the Commission's defiance of the High Court judgment. A writ petition was later filed by a group of concerned citizens asking the Court to direct the EC to fully implement its earlier judgment (Professor Muzaffer Ahmed and others vs. The Election Commission and others).

As is now well known, the EC has also more recently violated another important High Court judgment relating to the preparation of the electoral roll. On January 4, 2006, in Al-haj Advocate Mohammad Rahmat Ali and others vs The Election Commission and others (Writ Petition No.s 9157 and 9180 of 2005), the High Court gave a judgment directing the EC to prepare the electoral roll using the existing roll as the 'major basis' and without omitting any person on the existing roll, unless in the meantime they had died, or become insane, or were not residents in the area concerned, or could not be deemed to be so resident. The Court specifically directed the EC to arrange to “publish a copy of this judgment in the leading newspapers to dispel all doubts about the preparation of the Electoral roll which is going on.” The EC appealed against the judgment and continued to prepare a new electoral roll without taking into consideration the existing roll, defying the judgment, even though the judgment was not stayed by the Appellate Division. Justice Mahfuzur Rahman, the newly appointed Commissioner, even publicly stated that the judgment was not binding on the EC. Thus, this appeared to be a clear case of willfully ignoring a Court judgment, which the EC was obligated to implement. More importantly, the EC published a new draft electoral roll on May 3, 2006 just on the eve of the judgment of its appeal perhaps with the evil intention of making the matter fait accompli. It should be noted that after the Appellate Division dismissed the appeal on May 23, 2006, a writ was filed against the EC for contempt.

Acting against public interest
While directing the BTTB to collect outstanding telephone bills from 427 MPs, the Bangladesh High Court, in Bangladesh Legal Aid Services vs. Bangladesh, recently observed that the people of Bangladesh are the owners of the state, and all functionaries and members of all state services must serve their cause and work only in their interests. Unfortunately, the members of the EC have blatantly ignored public interest in defying two important Court judgments one on disclosures and the other on electoral roll. In doing so in the second case, the EC, through its lawyers, even tried to mislead the public as well the Court that it did not have the database of the previous electoral roll and could not update it. Shujan not only has the database, we are also working on it to post it on the web.

The defiance of the Court judgment on electoral roll has significant financial costs. The EC was initially given about Tk. 60 crore for the electoral roll. Most of the money is already spent, although for nothing as the newly prepared roll may have to be thrown away. Squandering away such a large sum of money amounts to a serious breach of its fiduciary responsibility on the part of the EC. This has clearly harmed the public interest and the three incumbent Commissioners must now be held liable to repay the amount to the public exchequer.

Another example of the Commission's not acting in the best interest of the public was shown by the advertisement it placed in newspapers after the publication of its ill-fated electoral roll. We could find the advertisement only in five newspapers New Age, Amar Desh, Ittefaq, Nayadiganta and Manab Zamin/Janatar Chok which was apparently intended to inform the public of the draft roll. The advertisement was published only for two days and the largest circulating dailies were totally ignored. The logical question then arises was the advertisement given really to inform the public?

Defaming the judiciary
The actions of the Election Commission, with two Justices as its members, not only lowered the Commission in the eyes of the public, but may also have contributed to contempt of court. Newspapers and the electronic media constantly refer to Justice Aziz and Justice Rahman's status as Justices while covering the misadventures of the Commission with respect to the preparation of the electoral roll. They even interviewed and quoted former colleagues in the bench of the two Justices to give the stories additional spin. These have clearly and seriously undermined the prestige of the Judiciary, one of the three pillars of the state.

A quote from a letter of Justice Stone to American President Roosevelt, may be relevant in this context. “A Judge ... cannot engage in political debate or make public defense of his act ... But when he participates in the action of the executive or legislative department of Government, he ... exposes himself to attack and indeed invites, which because of his peculiar situation, inevitably impairs his value as a Judge and the appropriate influence of his office.” (DLR 29, correspondence) The framers of our Constitution perhaps had this in mind when they included Articles 118(2) and 99(1) in the Constitution.

CEC's failure to provide leadership
Article 118(2) of the Constitution designates the CEC as the chairman of the Commission. According to the Indian Supreme Court (T.N. Session v. Union of India ((1995) 4 SCC)), the functions of the chairman is “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.” Justice MA Aziz has totally failed to provide such leadership. He blatantly sidelined his former two colleagues Messrs Munsef Ali and Mohammad Ali and they on numerous occasions publicly complained about it. At one point, it was reported, they were even prevented from talking to anyone in public. Such behaviour of Justice Aziz undermined the prestige of the entire Commission in the estimation of the general public.

To conclude, it is clear that the appointments of Justice Aziz as the CEC and Justice Rahman as a Commissioner raise serious legal and constitutional issues. Mr. Zakaria is viewed to be a partisan individual. The Commission has defied wilfully and repeatedly High Court judgments, for one of which a contempt rule has already been issued against it. The Commission's actions also blatantly undermined public interest and defamed the judiciary. As the CEC, Justice Aziz has failed to provide the necessary leadership of this important constitutional body. Given these factors, it is hard for the public to keep faith and confidence in this vital institution entrusted with the serious responsibility of holding free, fair and impartial elections. Thus, it is imperative that they tender their resignation without delay, for they have already caused irreparable harm to the nation. They have already violated public trust, and they cannot be trusted anymore. Given the events narrated above, any self-respecting person would resign immediately.

Dr. Badiul Alam Majumdar is Secretary, Shujan.