'A formula to protect votes must be devised unitedly'

The constitution speaks about a law to form the election commission, but no such law has been drawn up in the past 50 years. How do you view this failure of the successive governments?

Your question highlights three issues -- the constitution, the law and the election. The constitution is the highest law of the land. We earned this through the bloodshed of our independence struggle. In Article 11 of our constitution we have said, "The Republic shall be a democracy in which fundamental human rights and freedom and respect for the dignity and worth of the human persons shall be guaranteed [and in which effective participation by the people through their elected representative in administration at all levels shall be ensured]." The words, 'effective participation by the people through their elected representative in administration at all levels' were abolished by means of the fourth amendment, but at the behest of the people, was reinstated in 1991 by means of the 12th amendment.

Article 118 (1) of the constitution is an effort to put that provision into effect. Article 118 (1) states: "There shall be an Election Commission for Bangladesh consisting of [the Chief Election Commissioner and not more than four Election Commissioners] and the appointment of the Chief Election Commissioner and Election Commissioners (if any) shall, subject to the provisions of any law made in that behalf, be made by the President."

The provision, "...the appointment... shall, subject to the provisions of any law...," has been violated for the past 50 years. Similarly, Article 95(C) regarding the appointment of Supreme Court judges which states that a "person shall not be qualified for appointment as a Judge unless he has... such qualifications as may be prescribed by law for appointment as a Judge of the Supreme Court," has also been flouted.

If the constitution is our valuable asset, is it not our responsibility to protect it and comply with it? The constitution is the highest contract of the people by the people. The very first verse of Surah Maidah in the Holy Quran states: "O believers! Honour your obligations... fulfill all contracts." So by not following the constitution, we are disobeying Allah's rules. No political party has raised this demand in their election pledges. No citizen has filed a writ petition with the Supreme Court, questioning why it is not unlawful not to make this law and why it will not be said to draw up this law. And we who have been, or are, judges, we too have not protected the constitution by issuing a suo motu rule.

Nepal, Pakistan and Bhutan have different laws to constitute the election commission. We follow India where there has been undeterred democracy for the past 75 years. Do you think any law can ensure the voting rights of the people here, where there are all sorts of experiments in forming the election commission?

Article 245-247 of Nepal's constitution talks of the authority and process of forming the election commission. The president will appoint the chief election commissioner and election commissioners in accordance to the recommendations of a constitutional council. This constitutional council will comprise of the prime minister, the chief justice, the speaker, the leader of the opposition and so on. The council will determine the social status of the persons who they recommend, their moral character, people's perception about them, their past and so on. Then the council will send the names to the parliament. A hearing will be held by the parliamentary committee. The council will act in accordance to the constitutional Council Act 1964 (2010).

According to Article 213 of Pakistan's constitution, the president will make this appointment. But the prime minister will submit three names after consultation with the leader of the opposition. If they have no difference of opinion, each of them will send their lists separately to the parliamentary committee. The committee will select one name from the three. Half the members of the committee will be from the ruling party, and half from the opposition. The committee will have 12 members, one third of whom will be members of the senate.

In Bhutan, the commission is formed in accordance to their constitution of 2008. But all procedures follow the Election Commission Act 2073 (2017). There is a monarchy in Bhutan. That is why none of these three countries fit the bill for our country.

India has a federal government. Balance of constitutional power is firm. Democracy prevails successfully there. Their judiciary is independent and reliable. That is why it can't be compared with our circumstances.

Planting the seedlings of these foreign elections in our soil, does not necessarily mean a tree will emerge. We must make our own special system tailored to our circumstances. And this must be done on the basis of the people and a consensus. It is not at all impossible to come up with a credible process by means of concerted efforts of all parties and the civil society. All that is needed is commitment and patriotism.

The search committee has proven to be a failure. I myself was a member of the search committee and was even the chairman later. The authority of the search committee is limited.

A demand was made by 54 eminent citizens for a law to be enacted to form the election commission. You were one of the signatories to the demand. But with the ruling party and their accomplices dominating the parliament, do you see any possibility of them paying heed to the opposition's demand for an election commission act? Or will this just give the government another opportunity to form a search committee?

None of our governments in power pay any heed to the opposition. But if the demand is made by the people, if the nation supports the demand, then the government has no choice but to relent. For example, while Article 11 was abolished by means of the fourth amendment, this was reinstated through the 12th amendment at the initiative of all the parties. The fourth amendment had done away with the provision to consult with the chief justice regarding the appointment of Supreme Court judges, but this was reinstated by means of the 15th amendment. Though the prime minister at the time had immediately disregarded the caretaker government concept, this was later accommodated by means of the 13th amendment.

When any law is made, the present cannot be taken into consideration alone. One must look far ahead. History does not rest on any one election. Rather than failures of the past, one must look forward to a bright future. I have already mentioned the search committee. While the Supreme Judicial Commission Ordinance 2008 was enacted to enforce the directives of Article 95, the Supreme Court declared this void. And some judges declared just Article 9(4) void. In consideration of public opinion concerning the ordinance, the government did not make it into a law. Why should the parliament make a law that is not actually a law at all? Will they forget our past history?

Your demands include that work should start from now to ensure that the public administration and the law enforcement play a neutral role during the election. Given the existing reality, is that possible? Do you all have any formula for this?

Eternal vigilance is the price of liberty. Not just from now, the people must work for this continually. The nation will provide the formula. If public opinion is created, if the people want an independent and neutral election, the way forward will emerge. If a decision is taken, then it will not be difficult to come up with a law to put that into effect. There is no dearth of qualified people in the country. There is a lack of commitment and courage.

When there was a balance of power between the government and the opposition, the election-related problems weren't resolved by means of dialogue. Do you see any such possibility at present? If not, will we be pitched into hartals and blockades once again? If such a situation arises, what will happen to the economy?

Just because there was failure in the past, does not mean there will be failure again. Such a negative attitude is not acceptable. Hartal (general strike) is a democratic right. The High Court gave a verdict, terming hartal as unconstitutional. The case went to the Appellate Division and the verdict was dismissed. I gave the court verdict in the case Abdul Mannan Bhuiyan versus Bangladesh. The High Court had said this was a crime. The Supreme Court said it was a right. All means of expression of opinion are constitutional.

It has been 50 years since independence and we are still debating on how the election will be held, whether there will be a law or a search committee, etc. Many people say the election system has collapsed. Do you see any way of reviving it? If no way can be found, will that mean the people's voting rights have gone into permanent exile?

Your concern about the election is laudable. In 1944 when World War II was on, the House of Commons postponed the election by a year. Sir Winston Churchill in parliament apologised to the people for keeping them away for voting for a year. He said, "At the bottom of all tributes paid to democracy is the little man, walking into the little booth, with a little pencil, making a little cross on a little bit of paper - no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of that point."

In Abdul Munim Chowdhury versus Bangladesh case to protect the rights of the 'little man', the High Court division gave a ruling. Under the spurious name of Abu Safa, the ruling party at the time submitted an appeal to invalidate that ruling, and it was discovered that the person was just imaginary. Without hearing the case, the Appellate Division dismissed it. Dr Kamal Hossain declared in court that he would lie down in the court and until the order was recalled and a hearing was held, he would remain lying there. He said his dead body may leave the court, but he would not. The Appellate Division was obliged to recall the ruling and hearing of the appeal was later held at the Chief Justice's court and was dismissed. The High Court verdict was upheld and was added to the Representative of the People Order 1972.

The verdict given by the High Court in the Rahmat Ali MP versus the Election Commission case, made it possible to remove 12 million false names from the voters' list. That verdict was also upheld in the Appellate Division.

I gave these two High Court verdicts on behalf of the court. The nation can take hope from the role played by the Supreme Court in protecting people's rights to vote, that the Supreme Court will play a similar role in the future. We need lawyers like Abdul Munim Chowdhury and Dr Kamal Hossain. Where there's a will, there's a way. The will has to be united, selfless, with no vested interests and in public interest. The Creator does not thwart any efforts of man. The nation that has driven out the British, has driven out the barbaric Pakistan army, can drive out any chaos if it wants. We do not believe in despondence. We have been able in the past and will continue to be able, that should be our firm conviction.

Thank you

Thank you too