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The tenure of the present election commission ends mid-February next year. The law minister has said there will be no law in this regard because of the Covid-19 situation and lack of time. This time too the election commission will be formed by means of a search committee. He says that this system may not be a law, but is close enough to a law.

A very important person asked me what has the law minister meant. Either it is a law, or it is not a law. There can't be anything 'close to a law'. That is my question too -- what does 'close to a law' mean? The constitution has specific directives about forming the election commission in accordance to a law. It is compulsory for them to draw up a law. The government can't place this liability on anyone else. After all, they have been in power for 12 years at a stretch. They can't say that there is not enough time. There is still time if they want to do it. The government has been saying that everything will be done in keeping with the constitution. They will not move a fraction away from the constitution. So where is the constitution now? Is the constitution something like a telephone guide, to be used when I want or trashed when I don't?

The government has been saying that everything will be done in keeping with the constitution. They will not move a fraction away from the constitution. So where is the constitution now?

So is the commission that is to be formed, and all the commissions of the past, unconstitutional?

The manner in which the election commissions have been formed is not constitutional. These have been formed ignoring the aspirations and directives of the constitution. Article 48 (3) of our constitution says that in the exercise of all his functions, save only appointing the Prime Minister and the Chief Justice, the President shall act in accordance with the advice of the Prime Minister. So whose committee will this search committee be? Will it be the president's search committee or the prime minister's?

Will a law be enough to ensure an election commission acceptable to all? When the caretaker government system was in place, the most recently retired chief justice would be its head. That led to allegations of politicising the appointment of chief justice. If a law is made to form the election commission, will a similar situation arise?

That apprehension is there. That is why there is a need of good intentions. However, if there is a law, certain directives will be in place. Why do those in power not want to enact a law? That is because a law entails certain rules and regulations. It speaks of certain systems to be followed which prevent them from simply appointing whoever they want. That is why they have completely sidestepped this. It cannot be said with full guarantee that there will be a credible election simply if a law is put in place. However, it will pave the way for the correct and appropriate persons to be appointed.

Why do those in power not want to enact a law? That is because a law entails certain rules and regulations. It speaks of certain systems to be followed which prevent them from simply appointing whoever they want

The past two commissions were formed by means of search committees. Prior to that, the president held discussions with all registered parties regarding the formation of the election commission. The last two commissions were controversial. What are the shortcomings of this system?

The biggest shortcoming of this system is Article 48 (3). Our Justice Shahabuddin Ahmed said that the president has hardly any function other than attending janaza (funeral rites) and carrying out some routine duties. That is the weakness of the constitution. Another shortcoming is the lack of honest intentions.

Prior to the two last commissions, the previous commissions were appointed by the president directly. Were there any differences between the commissions formed in the two different methods?

Actually there is no difference at all. There was a time when the commissions comprised persons who had acceptability, such as the Abu Hena Commission and the Shamsul Huda Commission. They carried out their responsibilities neutrally. Unfortunately, those who have been taking these decisions in recent times, are not doing so in public interest.

If they feel the situation deteriorates to the extreme, they can cancel the election. If there is rigging, they can cancel the vote results following investigations

Say a commission is formed by means of a law. But can a fair and credible election be held if those in power during the election do not want it to be so?

Our election commission has huge power. Other than turning day into night and night into day, they can do anything in the interests of fair elections. But the government, that is, the law enforcement and the administration, are important partners of the election. From past experience we have seen that unless the law enforcement agencies and the administration play a neutral role, even the strongest election commission cannot hold a good election. Despite that, the election commission has a nuclear power. If they feel the situation deteriorates to the extreme, they can cancel the election. If there is rigging, they can cancel the vote results following investigations. Before the 2014 election if the commission had said that the situation was not conducive for elections, they could have suspended the election and safeguarded the election system.

The election commission can act as a shield to protect the electoral system from destruction. While it may not be possible to ensure a fair election without government cooperation, the election commission can halt a controversial election.

The election commission has never been seen to use this power.

That is because the commission is made up of persons loyal to the government. We were not in such a bad situation before. Before 2014, we hadn't heard of 153 persons being elected without votes or votes being cast at midnight before the polls and so on. Our Rakib Uddin commission and Nurul Huda commission had the chance to use this power. There was even a case filed against the 2014 election. Unfortunately, the election commission didn't function independently.

What more is needed along with the election commission for a good election?

A fair and neutral election requires the government, the political parties, the media and the civil society to all carry out their roles properly. A large section of the media is unable to report accurately. The civic society has been politicised. The political parties have become syndicates. Despite all these limitations, the election time government is important. Unless the election time government carries out its duties in a neutral manner, it is near impossible for the election commission to ensure a free and fair election.

How should an election time neutral government be? The caretaker government system has been abolished?

Awami League carried out a movement for a caretaker government. There is reason behind this. In her book, Daridra Durikoron: Kichhu Chintabhabna (Poverty Alleviation: Some Thoughts), the honourable prime minister wrote, "If any government knows they will not be in power during the election, they will then be committed to the people and work for the welfare of the people because they won't be able to influence the election." Those words still ring true. BNP attempted to manipulate the election by appointing President Iajuddin as the chief advisor of the caretaker government.

This system can be reformed. There can be a new form of caretaker government. The election time government can include representatives of all parties, media and civil society.

Another alternative could be the proposal made by the prime minister on 18 October 2013 while addressing the nation, about an all party election time government.

Now alongside the customary ballot, voting is also being done by means of the electronic voting machine (EVM). There is political debate about this too.

The biggest weakness in our EVM is that there is no paper audit trail. We simply have to accept whatever is in the EVM memory. There is no room for audit. This remains in the control of the election commission and the commissioners. They can insert any data into the EVM memory. For example, the results of the Chattogram City Corporation elections were published twice. There is scope for digital rigging.

Recently 54 citizens issued a statement in the media demanding a law to form the election commission. You were one of the signatories. The statement said that there was widespread public mistrust in the election commission and strong apprehensions concerning a fair election. How to dispel this fear?

People no longer want to vote. Many of the ruling party people even do not go to vote. That is because of a widespread lack of confidence in the election commission and the election system. Whoever is nominated by the ruling party will be elected. Commitment, appointment of the correct persons and a law to ensure certain rules and regulations is required to overcome this situation. Without this, there is fear of proceeding towards a grave crisis. Everyone needs to behave responsibly now.

Thank you.

Thank you too.

* The interview, originally published in the print and online editions of Prothom Alo, has been rewritten in English by Ayesha Kabir

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