In the meeting between political parties and the National Consensus Commission, discussions are underway regarding the appointment of honest, competent, reputable and non-partisan individuals to statutory bodies established by the Constitution and law, based on political consensus and transparency. To this end, the commission has proposed the formation of a constitutional body named the National Constitutional Council (NCC).
The proposed members of the NCC would be: 1. The President; 2. The Prime Minister; 3. The Leader of the Opposition; 4. The Speaker of the Lower House; 5. The Speaker of the Upper House; 6. The Chief Justice; 7. The Deputy Speaker of the Lower House; 8. The Deputy Speaker of the Upper House; 9. One member from outside the ruling and opposition parties of both houses of parliament, to be elected by a vote of members from both houses.
At the outset, the Consensus Commission proposed that appointments to key bodies -- including the Election Commission, Human Rights Commission, Anti-Corruption Commission, Public Service Commission, Comptroller and Auditor General, Information Commission, and the proposed Local Government Commission along with the chiefs of the three armed forces and the Attorney General, be made through the National Constitutional Council (NCC).
However, following initial discussions with political parties, it was decided to rename the proposed body as the “Appointment Committee for Constitutional and Statutory Institutions,” replacing the NCC title. It was also decided that the appointments of the chiefs of the armed forces and the Attorney General would be excluded from the committee’s purview.
While most parties supported the revised proposal, a few objected. They argued that forming such a constitutional structure for appointments to constitutional and statutory bodies would undermine the authority of the executive branch. Instead, they proposed that separate search committees be formed under the law to make appointments to each institution. This reasoning, however, is not only flawed. It has already had disastrous consequences, which we have all experienced firsthand.
Past experience has also clearly shown that despite widespread public desire to make the Election Commission truly independent and strong, and despite the President’s repeated initiatives for all-party dialogues, these efforts have failed.
Take the Election Commission, for instance. The commission is constitutionally an independent body, not part of the executive branch. Part IV of the current Constitution of Bangladesh deals with the executive, covering the President, Prime Minister and Cabinet, local government, the armed forces division, and the Attorney General.
In contrast, Part VII deals with elections, and Article 118 falls under this part, detailing the appointment of the Election Commission. That the Election Commission is not part of the executive branch is further clarified by Article 126, which states that “it shall be the duty of all executive authorities to assist the Election Commission in the discharge of its functions.” Thus, any new provision for appointments to the Election Commission would in no way infringe upon the powers of the executive because the Commission does not fall under it in the first place.
Despite this, the executive branch has historically appointed chief election commissioners, many of whom have been deeply controversial. For example, Justice MA Aziz, a former judge of the Appellate Division of the Supreme Court, was appointed Chief Election Commissioner on 25 May 2005 but had to resign due to controversies surrounding the voter list.
Later, the higher courts declared his appointment unconstitutional.
In light of such controversies, and under pressure to establish an independent and robust Election Commission, then-President held dialogues with registered political parties in December 2011 and January 2022. These dialogues involved 23 political parties, including the BNP, Awami League, Jatiya Party, and the Communist Party.
Following the dialogue, a four-member “search committee” was formed on 24 January 2012 by presidential order, consisting of Justice Syed Mahmud Hossain of the Appellate Division, Justice Md. Nuruzzaman of the High Court, Comptroller and Auditor General Ahmed Ataul Hakim, and Public Service Commission Chairman ATM Ahmedul Haque Chowdhury.
Unfortunately, the search committee itself included controversial and biased members, defeating its very purpose..
Many readers may recall that former Justice Nuruzzaman had previously been elected general secretary and later president of the Dhaka Bar Association from the ruling Awami League panel. He was appointed Deputy Attorney General in January 2009 and a High Court judge in June that same year. There is even debate over whether he had the required ten years of practice at the High Court prior to his appointment as judge. Based on the recommendations of this search committee, the controversial “Rakib Commission” was appointed in 2012, which paved the way for the one-sided 2014 election and the “election” of 153 members of parliament without contest.
Perhaps the most blatant example of partisan appointments via a search committee is the Nurul Huda Commission. Again, aiming to establish an independent and powerful Election Commission, former President Abdul Hamid conducted dialogues with 31 registered political parties. The process began on 17 December 2016 with discussions with the main opposition party, the BNP.
As a result of the dialogue, another search committee was formed through official notification, headed by former Chief Justice Syed Mahmud Hossain. Based on this committee’s recommendation, a rigged Election Commission was appointed under Nurul Huda, who had once participated in BNP-era protest platforms and was forced into compulsory retirement as a joint secretary during BNP’s rule. This commission went on to deliver the infamous “midnight election” of 2018. Incredibly, 100 per cent voter turnout was reported in 213 polling centers; the BNP received zero votes in 1,177 centers, and even the Awami League got zero votes in two centers.
Similarly, in 2022, a controversial law titled Chief Election Commissioner and Other Election Commissioners Appointment Act, 2022 was enacted. Under this law, a search committee was formed, headed by Justice Obaidul Hassan, and based on its recommendations, the highly controversial Awal Commission was appointed. Under this commission’s leadership, a one-sided and so-called “I vs. Dummies” election was held on 7 January 2024. Once again, the search committee included openly biased individuals such as former Election Commissioner Sohul Hossain, who had sought an Awami League nomination in the 2018 elections.
It is abundantly clear that the Election Commission, as a constitutionally independent institution, is not part of the executive branch. Therefore, appointments made through a constitutional body like the NCC would in no way undermine executive authority. On the contrary, if appointments to such institutions are made based on political consensus, it could open the door to a new possibility of inter-party harmony. As a result, a new political culture may develop in our country, one that seeks resolution through dialogue at the table rather than agitation on the streets.
Past experience has also clearly shown that despite widespread public desire to make the Election Commission truly independent and strong, and despite the President’s repeated initiatives for all-party dialogues, these efforts have failed. Even forming search committees through legislation did not stop the executive branch’s disgraceful behavior.
This is precisely why the Consensus Commission has proposed that appointments to key bodies like the Election Commission be made through a constitutional structure such as the Appointment Committee for Constitutional and Statutory Institutions. We believe such a mechanism would serve as a safeguard for the independence and impartiality of these institutions because appointments would be made with the consensus of senior representatives from all branches of the state and through political agreement, and because such a constitutional framework cannot be overturned or amended by a mere parliamentary majority as is the case with ordinary laws.
* Dr. Badiul Alam Majumdar, Secretary, Citizens for Good Governance (Shujan)
The opinions expressed are the author’s own