Legality of Awal Commission's appointment is questionable

The cabinet division on 5 February 2022 created a six-member search committee headed by Justice Obaidul Hasan with the objective of reconstituting the Election Commission under the Chief Election Commissioner and other Election Commissioners Appointment Act, 2022. According to Section 4 (1) of the act, the search committee will search for and recommend qualified persons for appoint as the Chief Election Commissioner and other Election Commissioners from the names proposed by political parties and professional bodies. In other words, the law empowers specifically the political parties and professional bodies – no one else – to nominate names for appointment to the Election Commission.

Section 4 of the act also says that the search committee will act on principles of transparency and impartiality and recommend names of individuals to the President for appointment to the post of Chief Election Commissioner and other Election Commissioners considering their qualifications, competence, experience, honesty and reputation.

On behalf of the search committee, the cabinet division on 6 February 2022 issued a notification authorising the political parties registered with the election commission to propose the names of 10 persons for the posts of Chief Election Commissioner and other Commissioners. The notification also opened the nomination to individuals, who could even propose their own names.

The above notification represents a clear violation of the section 4(1) of the law in two ways. Firstly, while the law allowed professional organisations to propose names, it was not included in the cabinet division’s notification. Secondly, the notification allowed individuals to propose names, although it was not included in the law. Thus, the law passed by the parliament was violated in appointing the Awal Commission, calling into question the legality of its appointment.

Following Section 4 (3) of the law, the search committee sent the names of 10 persons to the President for consideration for appointment to the Election Commission, from whom the President selected five. We do not know for sure how many of those 10 names sent to the President by the search committee were proposed by individuals, outside of political parties and professional bodies, in violation of the law, which would call into question the appointment of the Awal Commission.

This author tried unsuccessfully to receive from the cabinet division who-proposed-whose-names through an RTI application to ascertain how many, if any, legally ineligible individuals participated in the nomination process. The Information Commission also denied me the information on the ground that the disclosure of the names of proposers would violate the privacy of the individuals, although the law allows only political parties and professional bodies to propose names.

However, we are aware that at least one individual, late Dr. Zafarullah Chowdhury, who was by law not qualified to propose names, proposed the name of one person, who became a member the Commission. We are aware of Dr. Zafarullah Chowdhury’s proposed name because he publicly declared it. This clearly makes the legality of the appoint of the Awal Commission questionable.

Why were individuals allowed to propose names for appointment to the Election Commission, sidestepping the law? Was this a deliberate move? Given our past experiences, such concerns cannot be ruled out completely.

It may be recalled, a notification issued by the government in 2017 authorised only political parties to propose names to the search committee for appointment of the Huda commission. According to media reports, the ruling party at that time used a unique ‘strategy’ to influence the search committee’s decision. The strategy called for repeatedly proposing the names of their pre-picked panel of individuals to be appointed to the Election Commission by their alliance members and like-minded political parties.

According to a Prothom Alo report, in 2017 at least four parties proposed the name of KM Nurul Huda for the position of Chief Election Commissioner (CEC). These parties were Jatiya Party, Workers Party, NAP and Tarikat Federation, although Workers Party denied it.

Five parties proposed the name of commissioner Rafiqul Islam – Jatiya Party (JaPa), Jashod, Samyabadi Dal, Tarikat Federation and Jatiya Party (JP). Awami League, Samyabadi Dal, NAP and Gonotantri Party proposed the name of commissioner Kabita Khanam. Commissioner Shahadat Hossain Chowdhury’s name was proposed by Samyabadi Dal and Gonotantri Party. Outside of that, BNP proposed the name of commissioner Mahbub Talukdar.

In an interview given to Prothom Alo (12 February 2017), the search committee member for 2017, Professor Syed Manzoorul Islam, said that the name of the newly appointed Chief Election Commissioner, KM Nurul Huda, was proposed by seven or eight political parties while Ali Imam Majumder’s name was proposed by only two parties. Incidentally, Mr. Ali Imam Majumder was a former cabinet secretary while Mr. Huda was retired as a joint secretary.

This indicates that rather than selecting the most qualified persons though an actual search, the search committee recommended the names which were proposed the most. That is why it was possible for a relatively unknown person like KM Nurul Huda, a beneficiary of the government and with the experience of a joint secretary, to become the CEC. The search committee in this case acted nothing more than a rubber-stamping body.This has become obvious from a statement by the retired senior judge of the Appellate Division, Justice MA Matin. Drawing upon his experience, he stated: “I was first a member of the search committee for appointment to the Anti-Corruption Commission and later chairman of the search committee for the appointment to the Human Rights Commission and the Information Commission.

Under the present system, there is hardly anything the chairman or members of the search committeescan do. We are given a few envelopes from the cabinet division containing the bio-data of persons favoured by the government. There is no scope to scrutinise or select from outside of those names.” (Prothom Alo, 23 January 2022). Clearly, the search committees do not really ‘search’ or exercise due diligence in recommending names forappointments in different constitutional and statutory bodies.

This is quite a contrast to what an appointing authority normally do in hiring people for doing any job. In hiring people even for mundane jobs, candidates must face interviews and other formal and informal process of background checks. It seems that the search committee did nothing of that sort in recommending names for appointment to our Election Commission. Rather they merely acted like a ‘post office’.

It was clear that there was more or less therepetition of the previously tried and tested method in hiring the Awal Commission, as was used by the ruling party to ensure the appointment of their pre-selected persons to the Election Commission in 2017. “This time too, most of the names were from the list of small parties which were close to the government. They included Tarikat Federation, Jatiya Party (JP), Gonotantri Party, Bangladesher Samajtantik Dal (BSD), National People’s Party (NPP) and Bangladesh Nationalist Front (BNF). The first four parties are part of the Awami League-led 14 party alliance. The other two are also known to belong to the government camp. Outside of these six parties, names of those appointed to the new Election Commission were proposed by several parties or individuals … Leaders of the 14 party alliance and pro-government parties claimed that those names which were proposed most were given the highest consideration by the search committee. That is what happened the last time too.” (Prothom Alo 2 March 2022). Samakal on 28 February 2022 published a similar story.

It should be noted that after appointment to the Nurul Huda commission in 2017, Tarikat Federation claimed that three persons including the CEC were appointed from their proposed list. This time too they claimed that two from their proposed list and one from the 2017 list received the appointment to Commission. (Manabzamin, 10 September 2022). The use of such unique strategy by the government in recommending names to the search committee naturally creates suspicion about the reason behind the cabinet division’s allowing individuals to propose names.

Although the law called for appointing honest persons and persons of good reputation to the Election Commission in a transparent manner, the search committee was most secretive in conducting its business. Unlike the previous search committee, it even failed to disclose the names of the 10 finalists it recommended to the President, although the only way to judge the reputation of the persons under serious consideration was to disclose their names so that the public could give their opinion about the reputation, or lack of it, of the candidates. As mentioned earlier, this writer’s request to disclose whose names wereproposed by whom was denied by the cabinet division, violating the principle of transparency. It is thus clear that there has not even a minimum level of transparency in appointing the Awal Commission, which is a violation of Section 4 of the law. This has created a crisis of confidence regarding the appointment to the Awal Commission.

In addition to the lack of transparency and sidestepping of the law in appointing the Awal Commission, the neutrality of the search committee is also in serious question. It is widely known that after retiring as an election commissioner, one of the search committee members,Mr. Sohul Hossain, sought Awami League’s nomination in the 11th national parliament election. So it is only natural that questions arise regarding the legality of the appointment of the Awal Commission.

* Dr Badiul Alam Majumdar is Secretary, Shushashoner Jonno Nagorik (SHUJAN)