Constitutionally, the Election Commission is an independent organisation. Article 118 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.”
Even after 50 years of the country's independence, no government has passed any law regarding the formation of the election commission up to this point. The Election Commission headed by ATM Shamsul Huda had prepared a draft of the law regarding this after the military-backed caretaker government took over power. However, the law was eventually not enacted.
Several sources in the government and the EC say there is even no initiative for such legislation. Just like in the case of the previous two commissions, a search committee may be formed this time as well. The president may form the next Election Commission with people recommended by this committee.
However, there is widespread controversy in the country’s politics over the previous two commissions formed in this process.
The president forms the Election Commission in consultation with the prime minister as there is no specific law regarding this. However in 2012 and 2017, the EC was based on the recommendations by the search committee. In this case, the search committee formed by the president proposed several names for the post of the chief election commissioner and other commissioners.
President Abdul Hamid held dialogues with the registered political parties before the formation of the current election commission led by Nurul Huda. During these dialogues, each party proposed five names. Considering those names proposed by different political parties, the search committee recommended names of a total of 10 people to the president. From that list, president Abdul Hamid formed the current 5-member Election Commission.
Anisul Huq, the law minister, also the in-charge of the election commission secretariat, asked Prothom Alo, “Is the current system any less than a law?”
The law minister said the constitution bestowed the responsibility of forming the Election Commission upon the president. Therefore the president has introduced a system by consensus. To his knowledge, no political party is against this system.
The law minister also said it is not that they are not thinking about formulating a new law regarding this as stated in the constitution. But the current system is no less than a law. Which of the processes would be adopted this time is completely under the jurisdiction of the president, Anisul Huq added.
Although the formation of the Election Commission falls under the president’s authority, he has to act on the advice of the prime minister according to the Article 48 of the constitution.
Several sources in Awami League say this time too, the Election Commission may be formed through a search committee like the last two commissions. However, the dialogue with all the registered parties has become uncertain this time due to the coronavirus situation in the country.
The last two commissions were formed on the recommendations of the search committee. But the experience with those two commissions was not smooth at all. They have completely destroyed the electoral practices in the countryBadiul Alam Majumdar, secretary of Shushasoner Jonno Nagorik (Sujan)
After taking the charge, the current Election Commission was commended for successfully holding the Cumilla City Corporation election. However after that, they were widely criticised for their role during the parliamentary election in December, 2018 and in almost all the local elections.
On 14 December last year, 42 eminent citizens of the country sent a letter to the president demanding the formation of a supreme judicial council to probe nine specific allegations brought against the Election Commission during the 11th parliamentary election, including severe misconduct and discrepancies.
Later on 17 January, they sent another letter to the president. However, they are yet to receive any reply.
Badiul Alam Majumdar, secretary of Shushasoner Jonno Nagorik (Sujan), was among the 42 eminent citizens who wrote to the president. Speaking to Prothom Alo, he said it is quite unfortunate that a law regarding the formation process of the Election Commission could not be enacted even after 50 years despite it being mentioned in the constitution. The last two commissions were formed on the recommendations of the search committee. But the experience with those two commissions was not smoot at all. They have completely destroyed the electoral practices in the country. Now the time has come to formulate a law, not an ad hoc basis system anymore. The law would determine the qualifications and disqualifications of a commissioner. At the same time, it would ensure transparency in the process of forming the Election Commission.
He said there is still time to formulate this law. The commission headed by Shamsul Huda prepared a draft for this law. The law can be enacted by modifying that draft.
*This report appeared in the print and online editions of Prothom Alo and has been rewritten in English by Ashish Basu