Kabita Khanam gives constitutional lessons
Concerning the formation of the election commission, Article 118 of the constitution states, “the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf, be made by the President.” But it has been 47 years since independence and 46 years since the constitution was promulgated, yet the state powers have failed to devise any law regarding appointment of the election commissioners. It doesn’t seem like they are taking any initiative to do so either.
The incumbent KM Nurul Huda commission and the immediate past Kazi Rakibuddin commission were formed by means of a search committee. The previous commissions were formed through executive orders. In that sense, this would have been a step ahead, if the commission was committed to carry out its stipulated duties. It is unfortunate for the people of Bangladesh that each and every democratic and constitutional institution of the country has become fragile. Party politics has seeped in everywhere.
Even the recent conflict between four of the election commissioners (including the chief election commissioner) and one of the election commissioners was a manifestation of the excessive politicisation of the institutions. Yet in other democratic countries of the world, the election commission and even the institutions which support them, such as the public administration and law enforcement agencies, are all kept clear of politics. That does not mean that the government officials or members of the law enforcement cannot vote for any candidate of their choice. It simply means when it comes to carrying out their official duties, they must be totally professional. There can be no scope for them to vacillate in this regard.
The Bangladesh election commission is much more than just a constitutional institution. They have the responsibility of the votes of 100 million people and they must ensure that each and every voter has the freedom to vote for whomever they please. If they cannot do this, then it is meaningless to have an election commission or election commissioners. This is such a grave responsibility that the constitution maintains that the person who has been chief election commissioner will not be qualified to be appointed to work for the republic.
The other commissioners will qualify to be appointed as chief election commissioner, not to any other post. Article 118 (4) of the constitution states: “The Election Commission shall be independent in the exercise of its functions and subject only to this Constitution and any other law.” The election commissioner can now ask their consciences whether they are functioning independently or preparing themselves mentally to do so.
At a meeting held in the election commission on Monday, one of the election commissioners, Mahbub Talukdar, walked out of the meeting when he was prevented from discussing certain issues that he raised. He explained to the media that his freedom of speech had been curbed at the meeting. The meeting was held without him. The chief election commissioner later told the media that even though there were certain differences of opinion among them, this would not pose as a problem to conducting the election.
Things could have ended there, but they did not. A day later, election commissioner Kabita Khanam said that some of the issues which Mahbub Talukdar had wanted to discuss were untimely and some were contrary to the constitution. To her, it was not yet time to discuss the issue of deploying the army during the election. At a juncture when there is a flurry of activity to announce the election schedule, when foreign diplomats have asked the commission about the future of the election and when the army had been deployed in all past national elections, why would such a proposal be untimely? She claimed that though news reports stated that Mahbub Talukdar’s press briefing had disconcerted the election commission, that was not so. The commission’s unity remained intact. We want to ask Kabita Khanam, what does she mean by unity? If a united election commission is vital for a fair election, then Mahbub Talukdar’s proposals needed to be discussed. And if there is another election like that of 2014 in the offing, then there is no need for discussion on this matter whatsoever. They can just announce the day and date of the elections, declare the results, and their responsibility is done and dusted. They don’t even need any commissioner for the purpose either.
Let’s come to the proposal that Kabita Khanam termed as contrary to the constitution. Commissioner Mahbub Talukdar apparently has committed a gross wrongdoing by proposing that the public administration and the law enforcement agencies be placed under the election commission. But that is not contradictory to the constitution. Ruling party leaders and ministers are always saying that the government will merely conduct routine duties during the election period and make no policy decisions. The election commission will carry out all election-related duties.
In 2014, prime minister Sheikh Hasina phoned the opposition leader at the time, Khaleda Zia, offering that she takes over the home and the public administration ministries during the election period. This did not mean that Khaleda Zia would be heading a separate government. It was to ensure that the officials of those ministries could function independently and work in accordance to the election commission’s directives.
Kabita Khanam has used the constitution to bring her points home, so let’s look at the constitution. Article 120 states: “The President shall, when so requested by the Election Commission, make available to it such staff as may be necessary for the discharge of its functions.” That means even outside of these two ministries, the election commission can bring other staff of the republic under its jurisdiction. And surely Mahbub Talukdar didn’t call for the home and public administration ministry to be placed under the election commission in his personal interests or in the interests of his family.
Before becoming an election commissioner, Kabita Khanam had worked with the law so there is no reason for her not to grasp Mahbub Talukdar’s stance. The election commission’s responsibility is to conduct a free, fair and credible election. Now it is to be seen whether it is Mahbub Talukdar’s proposal or Kabita Khanam’s constitutional reading that is the actual obstacle to such an election.
Kabita Khanam is giving us lessons in the constitution, but what about the performance of the commission during the recently held five city corporation elections? Was that constitutional? They are yet to prove themselves capable of carrying out the solemn duty bestowed upon them by the constitution.
Before giving the public lessons in the constitution, the commission must carry out the duties which the constitution has placed upon them. Only then will the country and the nation be saved from disaster.
* Sohrab Hassan is joint editor of Prothom Alo and a poet. He may be contacted at [email protected]. This piece has been rewritten in English by Ayesha Kabir