Almost overnight, the government has a draft proposal ready for appointing election commissioners. How does it stack up?

In a surprise development, the Cabinet on Monday during its regular weekly meeting approved the draft of what is being called the 'Chief Election Commissioner and Election Commissioner Appointment Act, 2022' - finally filling one of the most talked-about voids in the Constitution left by its decree in Article 118 - we'll come to that. To the week's events first.

The approval came from the meeting held at the Cabinet Room of the Jatiya Sangsad with Prime Minister Sheikh Hasina in the chair.

"Today, the final approval was given to a draft law over the appointment of Chief Election Commissioner and Election Commissioners," Cabinet Secretary Khandker Anwarul Islam said, while briefing reporters as he usually does after each cabinet meeting, at the Secretariat.

Now as per the proposed law, a search committee will be formed taking approval from the president over the constitution of the Election Commission.

"The search committee will recommend the names of suitable candidates before the president to appoint the CEC and other election commissioners," Anwar said.

The move came just one month before the expiry of five-year tenure of incumbent Election Commission, led by CEC KM Nurul Huda, as it is going to complete its single five year-term in office in mid-February.

Talking about the qualifications of the CEC and election commissioners, the cabinet secretary said they must be Bangladeshi citizens with minimum 50 years of old, and have at least 20 years of work experience in important government, semi-government, private or judicial posts. That will immediately strike the keen observer as far too broad and general. The word 'important' must also be noted here - if they manage to get this passed, the word important is going to take on a whole another level of meaning.

Obviously as stakes go higher, or if the partisan monster emerges from its stupor, its slumber, words like 'important' in landmark legislation such as this can only indicate relentless vacuity, or rampant insecurities. As little of the law as possible should be left open to interpretation.

Continuing his readout of significant sections of the proposed said if a person is declared 'insane' by any court; has not been released from the jail after being declared 'bankrupt'; acquires the citizenship of or affirms allegiance to a foreign country surrendering Bangladeshi citizenship; has been convicted for a criminal offence involving moral turpitude and sentenced to at least two-year imprisonment; if he or she has been convicted by international crime tribunal; and is disqualified for such posts by or under any law, he or she would not be eligible for the post of CEC and election commissioners.

Describing the last disqualification, he said if a person once held the post of CEC or the Chief Justice, he or she would not be eligible for the post of the CEC. But if a person held the post of election commissioner, he or she might be considered for appointment to the CEC.

In order to give legal protection to the constitution of previous election commissions, it would be considered that these were made under this law, he said. Anwarul Islam hoped that it would not take much time to make the proposed law into an act.

Expanding further about the search committee, the cabinet secretary said a justice of the Appellate Division, nominated by the Chief Justice, will be the head of the six-member committee. The five other members will be a justice of the High Court Division nominated by the Chief Justice, the Comptroller and Auditor General, the chairman of the Bangladesh Public Service Commission, and two other personalities nominated by the president.

Though the Constitution suggests the appointment of the CEC and other election commissioners under a law, the text for such a law was not formulated by successive governments over 50 years.

Article 118 (1) of the Constitution states, "There shall be an Election Commission for Bangladesh consisting of 1[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."

In the past, the president appointed the CEC and commissioners in the absence of the prescribed law.

The last two election commissions, headed by Kazi Rakibuddin Ahmed and KM Nurul Huda, were constituted through search committees formed by the President, following dialogues with political parties.

The president picked the CEC and four election commissioners in 2012 and 2017 from the names suggested by the search committee. This time too, President Abdul Hamid started a dialogue with registered political parties on December 20 last to discuss the issues related to the constitution of the Election Commission ahead of the 12th general election to be held at the end of 2023 or the early 2024.

The government must have been hoping that through this move, it could take the sting out of the political arena that has been persisting throughout the last couple of months - a lot of it the fruits of geopolitical ventures. The kind that history may yet judge to have been actual misadventures. But the most important lesson you can learn to find or make peace with life is to only play the hand you get.

Remember public hearings?

Following the cabinet secretary's briefing, which of course could not have been comprehensive, Transparency International Bangladesh demanded that the enactment of an EC formational law must be done giving due importance to public expectations and thus taking opinions from civil society, as well as all other stakeholders, reported our sister newsagency UNB.

It is a matter of optimism that the draft law was approved following the month-long talks between the president and registered political parties over the constitution of an independent, neutral and non-party election commission, TIB said in its statement circulated among media houses.

"But it's essential to finalise it (the proposed law) through a complete scrutiny and detailed analysis on the basis of the opinions of the civil society or all the stakeholders before the enactment of such an important law which will reflect a constitutional pledge. So, the draft law will have to be made public soon for all," it said.

TIB executive director Iftekharuzzaman said the sudden step taken by the government to enact the election commission law, reflecting the constitutional commitment and the long-standing public expectation, is 'positive'.

He said the civil society has long been calling for formulating this law long before the president's talks with various registered political parties started over the EC formation. Most of the political parties that joined the talks also demanded the formation of the law.

Referring to media reports, he said the draft law proposes the EC would be formed through a search committee as usual, which is inconsistent with international experiences. "Apart from setting some general criteria for the search committee, the details of what is in the draft law are still unknown to stakeholders and civil society," he said.

Iftekharuzzaman said the government needs to clarify in the law that whether there will be a woman representative in the search committee, what will be the eligibility criteria of the two citizen representatives to be nominated for the committee, what will be the working procedure of the committee, and whether the names proposed by the committee will be published.

It also needs to articulate further about qualifications, skills, experiences, neutrality and acceptability of the CEC and election commissioners, he said.

"In the political context of Bangladesh, they (CEC and election commissioners) will have the courage and determination to maintain a neutral and objective stance. Incorporation of such assurance clauses in the law is very essential," he said.

"To this end, the draft law should be immediately made public and finalised on the basis of the opinions of the stakeholders and civil society. Otherwise, the possibility of forming a free, fair and acceptable election commission, which has long been expected by the people of the country, will be thwarted again," he added.

The TIB executive director said if the law is passed without scrutiny and taking opinions of the stakeholders and civil society, its acceptance would be questioned. "So, there is no alternative to passing the law on the basis of public opinion, giving utmost importance to public expectations," he said.

As for what civil society may suggest, it is to be recognised that not every citizen would necessarily seek to pitch in here, even among those that are politically active or conscious at least. One of the voices from within civil society that has always concerned itself with the functioning of the democracy Bangladesh promises its citizens is that of Shujan - Shushashoner Jonno Nagorik, or Citizens for Good Governance.

Over two decades now, they have allied themselves resolutely to the cause of democracy in Bangladesh, and their work has focused on myriad processes, legislation, sensitisation and field work to establish the foundations of a working, sustainable democracy. At times they have faced obstacles, they have been thwarted, at times even they have been found wanting, but their credentials are nothing if not bona fide.

Interestingly they had on their own initiative gone to the trouble of presenting a draft law for the very same purpose: they had titled it Chief Election Commissioner and Election Commissioner's Appointment Act 2021. A delegation of Shujon submitted their proposed draft of the law to the law minister in November. Back then the law minister was routinely quite dismissive of the need or time being there to enact a law for the purpose before the current commission's time runs out.

But events in December took a slightly different turn to what most observers of the political arena would have anticipated. Tangents occurred in unexpected directions. Some receptiveness, instead of stale old hubris, may yield better results in the days ahead. But it hasn't still convinced the minister to take the Shujon draft seriously it seems - at least not yet. The main differences we find are precisely on those questions of specificity and stringency on the set of qualifications and disqualifications respectively.

Points of departure

According to the draft presented by Shujon, selected citizens of Bangladesh - with a minimum age of 45 years, knowledge of law with proven administrative skills, honesty and supposed impartiality, holding a minimum bachelor degree from a recognised university, and at least 20 years working experience in any important government, semi-government or private position - will be eligible to be an election commissioner.

In the draft of the law, Shujon said the president shall form a search committee consisting of seven members, including a minimum of one woman, in order to fill the vacancy of election commissioner.

Now remember this was presented to the Law Ministry when there was no real expectation of any legislation being enacted in this case. Is it possible that were they tasked with it in the knowledge that a law would be enacted, they would have proposed some things a bit differently? For example, is it really more essential to ensure female representation in the search committee stage, and not among the commissioners themselves, who after all will have the executive powers in arranging massive public exercises that are almost always found wanting when it comes to addressing some needs of women?

The Shujon draft is also quite big on the idea of doing it through a search committee (I.e. same as before). And really it is here that it distinguishes itself from what is in the draft presented at the cabinet meeting. It proposes one comprising no less than 7 members:

A retired judge, who shall be the convener of the committee; a member of parliament nominated by the leader of the parliament; a lawmaker nominated by the leader of the opposition; a member of parliament nominated by the third largest political party in terms of number of seats in parliament; the Comptroller and Auditor General of Bangladesh; a representative of civil society, who shall be elected based on a majority decision by the first five members in case of non-unanimity or non-consensus; and a representative of the media, who shall be nominated based on a majority decision of the first five members, in case of non-unanimity or non-consensus.

There are major differences here in the composition of the 6-member committee proposed in the government's draft (see above). Whereas Shujon is really opening it up to accommodate a wider representation from different spheres of society, the government is proposing a fairly closed process where the Chief Justice chooses two of the members, two more will be completely at the president's discretion (the Chief Justice is at least restricted to nominating his colleagues on the bench), while the CAG and PSC chairman complete the circle.

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