A full-fledged election commission law was necessary

Elections are an extremely popular political device, globally. For the same reason, ‘elections’ are an important topic of study and research in applied politics and political science. Psephology is a branch of political science dealing with the elections. While democracy and elections have long been the topic of discussion in Bangladesh’s politics, elections alone have generated huge debate and discussion in the country. But, as in the case of many important issues, there is no tangible study or research on elections here.

One of the major debates of our political democracy is about the election commission’s neutrality and about enacting a law in accordance to Article 118 (1) of the constitution in order to constitute and run the election commission. Then, all of a sudden, just 20 to 22 days before the end of the present election commission’s tenure, the cabinet approved a draft law, ‘Appointment of the Chief Election Commissioner and Election Commissioners Act -2022’. And then with all speed and alacrity, this was passed by the Jatiya Sangsad (national parliament) just 18 days before the end of the election commission’s term.

There had long been a demand from all quarters for a full-fledged law pertaining to the appointment of election commissioners and related matters. The government had never seemed concerned about all this. Then after a long delay of 50 years, in a flurry and a hurry, it has come up with an incomplete law. There was not even time to prepare any comments or opinion in writing in this regard. The bill was simply passed following a three-hour discussion where 22 of the 72 proposed amendments to the bill were incorporated. Yet this had been an opportunity to come up with a good, effective and full-fledged law regarding the election commission.

The law has been passed, but the debate continues. If the law ever comes up for amendments, then perhaps the following observations may be taken into cognizance.

1. Rather than being the ‘Appointment of the Chief Election Commissioner and Election Commissioners Act -2022’, this should have been called the ‘Election Commission Act – 2022’. In keeping with the constitution, alongside clear provisions for the appointment of the commissioners, this law could include the necessary provisions in order to overcome any legal or political obstacles to the functions of the commission, the application of its authority and to ensure its transparency, independence and neutrality.

2. There was need to add certain provisions to this law so as to include, other than Article 118 (1), election commission-related provisions in Articles 118 (4), 119 (2) and 126.

3. Article 118 (4) states ‘The Election Commission shall be independent of its functions and subject only to this Constitution and any other law.’ The law requires certain provisions to ensure that independence. For instance, there was need for specific provisions regarding the commission’s funds, appointments, taking steps on its own accord during the election, and so on. This would enable it to take bold decisions at various critical junctures.

4. Similarly, there was need for certain additions to the functions and duties of the commission in accordance with Article 119 (2). For instance, according to the constitution, one of the major functions of the election commission is conducting the parliamentary and the presidential election. Yet from the very outset, this election commission has been conducting the elections of the local government institutions. While this commission is to conduct the ‘local government’ elections, that is not included in the constitution or any other law of the election commission. Every time the election commission conducts the elections to local government institutions under executive orders from the local government division. If a provision for the local government institution elections was added to this law, then automatically the election commission could, on its own authority, hold the elections to the local government institutions before the end of the terms of these institutions. That is why such a provision could have been included in this law.

5. Article 126 states, “It shall be the duty of all executive authorities to assist the Election Commission in the discharge of its functions.” A clear provision is required in the law to make this effective so that if any of the ‘authorities’ do not follow the directives of the election commission and display negligence towards their ‘duty’, punitive action can be taken against them in accordance with the law. All this needed to have been clearly reflected in the recently passed law.

6. The focus of the bill has become the ‘search committee’ and also to provide legitimacy to the process of forming the previous two commissions. The issue of providing legitimacy to the two previous commissions by means of this law in itself raises the question afresh as to whether these two commissions were indeed legal. In my personal opinion, providing this legitimacy is irrelevant and meaningless. This matter is, in legal lingo, ‘past and closed’. I also do not feel that a search committee is required to appoint the CEC and other commissions at present or in the future either.

Again, provisions regarding the qualifications and disqualifications for the commissioners, also does not seem to be correct. There was need for further elaboration. Simply being 50 years old with 20 years experience in government or non-government service can hardly qualify one as a member of the commission. There could have been provision for a public hearing or special interview by a parliamentary committee to assess the competence of the persons. Appointment to the EC is not the same as appointment to any other government job. The main consideration should have been to ensure the very best persons of the nation are selected to take on the responsibility of conducting a credible election. There were many good suggestions and amendments in this regard, all of which were overlooked.

7. It is not as if there weren’t peaceful and credible elections in the past in our country. There is need for clear guidelines to resolve the questions which arose since the 2014 election and to take the nation ahead. In today’s world, no country is isolated for the other. A modern state must advance ahead in keeping with universal and internationally recognised principles and ethics. Salient among these are democracy, human rights and climate change legislation. So rather than any obfuscation, a full-fledged law should be drawn up with all sincerity to ensure a credible election.

In conclusion, this law should not have been restricted merely to appointments. The country needed a full-fledged election commission law. That aspiration has not been fulfilled. “Something is better than nothing” does not apply here. The law minister claims to have taken the “wind out of the sails” of those who had taken up a movement, snatching away any issue for them to use. We want an end to such unnecessary and unwarranted debate. We want an honest, competence and independent election commission. And finally, we want more or less credible, peaceful, inclusive, transparent and normal national and local elections.

* Dr Tofail Ahmed is a professor of public administration and an expert in local government and governance. He can be contacted at tofail101@gmail.com

* This column appeared in the print and online edition of Prothom Alo and has been rewritten for the English edition by Ayesha Kabir