'Appointing a spineless person will be of no use'

As part of the civil society, you all demanded a law in keeping with the constitution to form the election commission. The government, in the meantime, has drawn up a draft law which has been approved by the cabinet. It is expected to be passed in this session of parliament. What is your response to this?

The fact that the government is coming up with a law indicates that they are aware that the citizens’ demand is justified and that this is a constitutional obligation. This is a partial victory for civil society. However, this draft law again has that useless search committee, the propensity to place the liability on the judiciary, and impunity in constituting the commission. Things are just getting murkier.

The draft law proposes that the election commission be formed by means of a search committee. The previous two commissions were formed by means of search committees. You were part of two search committees formed for other purposes. Has the new law changed anything?

I was a member of the first committee to appoint the Anti-Corruption Commission and was later the chairman of the committee to appoint the human rights commission and the information commission. The new law retains the old formula of a search committee. There is nothing much for the chairman or the members to do within this formula. They are just given some envelopes by the cabinet division containing the names and details of certain persons of the government’s liking. There is no scope to scrutinise and select names from there. The chairman and the other persons in constitutional posts needlessly get the flak for this. That is unwarranted. Constituting the election commission is a political process and the judiciary should not be dragged into the matter.

The civil society had demanded that a law be drawn up to constitute the election commission. But, it is said, they did not come up with specific proposals. Now the government has the chance to say, we have followed the people’s demands and have come up with a law.

Such claims are not true. The civil society, particularly Shujan (Shushashoner Jonno Nagorik/Citizens for Good Governance) have relentlessly researched details of this law, collected the opinions of relevant persons at various workshops and taken into cognizance the prevailing laws of various countries in this regard, and then submitted a draft law to the law ministry for perusal.

It was said that since this law was to be in accordance to Article 118 of the constitution, it would need a lot of time and consultation. This will be a permanent law. Yet the draft law was drawn up in a matter of a week. The people have no idea what process was followed and under whose inspiration old wine was simply poured into a new bottle.

Given the political realities of the day, will simply enacting a law resolve the election problems?

Certainly not. The problem is in trust. The question is, under what sort of government will the election commission function? Do the people have trust in that government?

So what alternative proposal do you have?

Personally I feel that there needs to be a neutral national government during the election. The election commission will be formed based on the views of all political parties. The involvement of the civil society, that is, all institutions relevant to the election, must be ensured. Importantly, the parliament must be brought into this process. A national consensus must be reached though the consensus of the ruling party and the opposition. A halt must be brought to the ‘nomination trade’ and genuine politicians and activists must be given the scope to actively participate.

The fourth amendment of the parliament ushered in presidential rule. By means of consensus, the ruling party and the opposition ushered in the parliamentary system in 1991 through which almost all powers vested in the president were transferred to the prime minister. Many politicians see this as the prime minister’s authoritarianism. What do you say?

The 1991 consensus is a brilliant milestone in our parliamentary democracy. But is wasn’t correct to hand over all power to the prime minister and restrict the president to mere formalities such as paying respects at graves and mausoleums. It is a national duty to ensure a power balance. After World War II in America, the Congress itself handed over much of its powers to the president. That is why it is called imperial presidency over there. Power balance is the demand of the day.

The opposition maintains that a free and fair election is not possible under a political government. However, the general perception is that the recent election in Narayanganj was more or less free and fair. Other than EVM glitches, there were no major complaints. So do you think that a fair election is possible under a partisan government?

This was a local election. The government wanted the election to take place and so it took place. Rather than depending on the government’s will, the election must depend on the legal system.

According to the constitution, the election commission is independent. So why are those in office at the election commission, not exercising this independence? Does this apply to the judiciary too?

An excellent question. No matter what the law may say, unless those in office nurture an independent mindset, they will never be independent.

The three pillars of the state are the legislative, the executive and the judiciary. Many are of the opinion that in Bangladesh, these three pillars have simply merged into one. What do you say?

The political philosopher Charles Louis de Montesquiei’s ‘separation of judiciary’ has not been followed in our constitution. What has been done is ‘distribution of power’. That’s why it all seems to have merged into one. But each pillar is independent in its own area.

Our democratic and state institutions are steadily becoming weaker and weaker. Do you see any means of reviving these?

The means is to bring a halt to the politicisation of the institutions. From the top level of the state, the institutions must be given the courage to function freely, to say ‘no’ to corruption. Patriotism, religious values and accountability must be ensured.

You were one of the main judges in the Supreme Court writ against the indemnity for Bangabandhu’s killers. You had said that there can be no indemnity for any crime. The election commission draft law talks of indemnity for the past two search committees. How do you view this?

You have referred to the Shahriar Rashid Khan vs the state and other cases. That is a long history. Indemnity Ordinance No. 50/1975, was imposed by the president at the time, Khandkar Mushtaque Ahmad, by means of Article 91(1) of the constitution. In that case we said that the objective of that law was to grant indemnity to a few killers. This objective was contrary to the fundamental human rights as recognized in the UN Charter and by other international conventions. We said all laws must have a certain philosophy and any law that goes against ethics, is no law at all. We also said that true justice is the base of law. According to Article 11, as that ruling was not dismissed by the Appellate Division, it is a law declared and applies to the entire nation.

Section 9 of the proposed bill states that the previous search committee constituted by the president to appoint a chief election commissioner and election commissioners, its proceedings and the appointment of the election commissioners shall be considered legitimate and no question in this regard shall be raised in court.

To the apparent eye it seems that Section 9 only protects the search committee proceedings and the appointment of the chief election commissioner and election commissioners. It does not given indemnity to the chief election commissioner and election commissioners. However, this law lends legitimacy to certain proceedings that took place at a time when this law didn’t even exist. Applying such retrospective effect is not legally acceptable. Laws that give blanket indemnity and erode the powers of the court are not acceptable. It goes against the rule of law as upheld in our constitution. Such laws lead to a culture of lawlessness.

The civil society’s contentions had been against the activities of the election commission, not against the search committee. They had given a letter to the president concerning the commission’s financial discrepancies. Yet the draft law proposes indemnity for the search committee formation process. Is this a ploy to protect the present election commission?

As I said, the proposed law only protects the search committee proceedings and the appointment of the chief election commissioner and the election commissioners. So if the chief election commissioner and the election commissioners have committed any offences, that clause will not be able to protect them. I do not think this is a ploy to protect the present election commission. No one is above the law. The constitution is the source of the court’s power. This cannot be eroded by any subordinate law. Allegation of financial discrepancy is certainly an important allegation. This calls for action, particularly when the allegations are directed against officials of a constitutional institution. When the president was apprised of the matter, it should have been sent on to the Supreme Judicial Council for inquiry and the matter should have been brought to justice. There is still time to do so.

Bangladesh’s election commission has much more power than the election commission of India. So why can’t they exert their power over the executive? Did we ever get a chief election commissioner like India’s TM Seshan?

Our constitution has given the election commission limitless powers to conduct a credible election. If there are any irregularities, they can suspend or cancel the entire election. In India, TN Seshan halted the election wherever there were irregularities. Over here, Abu Hena shaheb or the ATM Shamsul Huda commission gave us considerably good elections. A lot depends on the individual. But no matter how much power you give a spineless person, it will be of no use. The selection process must be fair. It is not believable that a competent person cannot be found in our country of 170 million people. If there are good intentions, such a person can certainly be found.

It has been 50 years since Bangladesh’s independent, yet we still have failed to break away from election controversies. Who will you hold responsible for this predicament?

We have failed to do many things. Have we managed to establish good governance, a government for the people and by the people, to eliminate the huge disparity in resources, to establish the rule of law and justice? However, 50 years is not long in a nation’s history. There is no need for us to give up hope. If the people want, certainly all our prevailing frustrations will be resolved. It is illogical to think that a nation that won its independence though so much bloodshed and struggle won’t be able to render this independence meaningful.

We may have achieved considerable economic development in the 50 years of our independence, but we are steadily falling back when to comes to the rule of law and protecting human rights. Generally speaking, political leadership is held to blame. But does the judiciary not have any liability?

None of us are free of blame. I do not have the gumption to say the judiciary is one hundred per cent successful. But there is no need to think that we cannot take past mistakes into consideration and establish up a successful and effective judiciary. Our slogan should be - “we shall overcome”.

Thank you

Thank you too