Bangladesh is finally going to have a legal framework for selecting the chief election commissioner and other election commissioners as parliament passed

the “Appointment of the Chief Election Commissioner and Election Commissioners Bill-2022" on Thursday.

Law, Justice and Parliamentary Affairs Minister Anisul Haq moved the Bill and it was passed by voice vote.

Law Minister Anisul Huq placed the Bill in parliament on January 23 seeking to give a legal shield to the current and previous Election Commissions formed through search committees. It was sent to the respective scrutiny committee for deeper examination.

On Wednesday, chairman of the committee M Shahiduzzaman Sarker placed the committee report with some changes in the original Bill

Once assented by the President, the law will provide legal cover to all activities of the search committees.

The government move came nearly 50 years after the constitution prescribed enacting a specific law for forming the EC.

Read: Report on EC formation Bill placed in parliament

Eligibility

The qualification of CEC and election commissioners, after the recommendation from the Parliamentary Committee, is that they must be Bangladeshi citizens with minimum 50 years of age, and have at least 20 years of work experience in important government, semi-government, private or judicial posts, autonomous and other professions.

Ineligibility

If a person is declared ‘insane’ by any court; has not been released from the jail after being declared as ‘bankruptcy’; acquires the citizenship of or affirms the allegiance to, a foreign country surrendering Bangladeshi citizenship; has been convicted for a criminal offence involving moral turpitude and sentenced imprisonment; convicted by international crime tribunal; and is disqualified for such posts by or under any law, he or she would not be eligible for the post of CEC and election commissioners.

A person once held the post of CEC or the Chief Justice, he or she would not be eligible for the post of the CEC. But if a person held the post of election commissioner, he or she might be considered for appointment to the CEC.

In order to give legal protection to the constitution of previous election commissions, it would be considered that these were made under this law, the Bill says.

Search Committee

A justice of the Appellate Division, nominated by the Chief Justice, will be the head of the six-member search committee.

The five other members will be a justice of the High Court Division nominated by the Chief Justice, the Comptroller and Auditor General, the Chairman of the Bangladesh Public Service Commission, two other eminent personalities including one woman nominated by the President.

Though the Constitution suggests the appointment of the CEC and other election commissioners under a law, the law was not formulated in the past.

Article 118 (1) of the Constitution states, “There shall be an Election Commission for Bangladesh consisting of 1[the Chief Election Commissioner and not more than four Election Commissioners] and the appointment of the Chief Election Commissioner and other Election Commissioners (if any) shall, subject to the provisions of any law made in that behalf, be made by the President.”

The tenure of the incumbent commission, led by CEC KM Nurul Huda, expires next month.

Practice in the past

Ahead of the general elections in 2014 and 2018, the President picked CECs and other commissioners in 2012 and 2017 following recommendations by search committees.

The Bill says the previous search committees, their functions and the appointments of the CECs and other commissioners made following their recommendations will be deemed valid, and no question can be raised in any court over the matter.

It will be considered that the incumbent and previous ECs were constituted as per the law.

As per the proposed law, a six-member search committee will be formed following the president's approval for forming the EC.

"The search committee will recommend names of candidates for the chief election commissioner and other commissioners to the president…" it said.

In the bill, the previous two search committees have been given legal validity.

In the past, the President appointed the CEC and commissioners in absence of the law.

The last two election commissions, headed by Kazi Rakibuddin Ahmed and KM Nurul Huda, were constituted through search committees formed by the President following his dialogues with political parties.

The President picked the CEC and four election commissioners in 2012 and 2017 from the names suggested by the search committee.

This time, President Abdul Hamid also started a dialogue with registered political parties on December 20 last to discuss the issues related to the constitution of the Election Commission ahead of the 12th general election to be held at the end of 2023 or the early 2024.

The tenure of the incumbent KM Nurul Huda led election commission will expire on Feb 14.

The cabinet approved the draft of appointing CEC and other election commissioners on January 17.

Read:Much-hyped EC formation Bill placed in parliament

BNP’s Protests

BNP MP Harunur Rashid, however, strongly opposed the Bill and said this law is a government ploy to execute its new strategy over the next national election. “People think that the government is making mockery in the name of enacting the EC law.”

He also mentioned that there is not much discrepancy between this law and the gazette on formation of the search committee in 2017.  “One of the qualifications for inclusion in the search committee is to be loyal to the government. If the heads of constitutional bodies are given the responsibility of the search committee, they will also be disputed.”

Harun said that people are disappointed with the proposed law and do not want it.

Lambasting the law minister for enacting such a law, Rumeen Farhana of BNP said the president, according to the constitution, is bound to act on the advice of the prime minister.

The president cannot do anything independently except appointing the prime minister and the chief justice. “But the president has been mentioned in the Bill to make an illusion,” she added.

Rumeen said the enactment of the law in a hurried manner is nothing but an eyewash as the proposed law was enacted without consulting the stakeholders. “This law has been rejected not only by BNP but also by various political parties and civil society. It cannot be called the law on formation of EC but the law on formation of search committee.”

She said there would have been transparency in the search committee had one representative each from the government party, the main opposition and the third largest party been included there in the search committee.

“But in the proposed law, the EC will be formed only by the will of the government and the prime minister. That election commission will not be independent, it’ll be the Ministry of Election Affairs of the government,” she said.

Jatiya Party   

Jatiya Party MP Shameem Haider Patwary said the EC Bill is totally contradictory with the constitution. “Article 48 of the Constitution says the President shall act in accordance with the advice of the Prime Minister except for appointing the Prime Minister and the Chief Justice. Whereas, the proposed law says, the President will appoint the CEC and other ECs which is contradict to Article 48.”

Therefore, he said, everything including the formation of the search committee and appointment of the chief election commissioner and other election commissioners will be done as per the will of the prime minister, he added.

He said although the proposed law has not mentioned anything what will  happen after the Search Committee’s selection of 10 names for appointment of the EC, the fact is that the panel of 10 names will be sent to the prime minister and she will select five names from there. Later, the prime minister will send those names to the president and he will appoint them.

He also said it would be unconstitutional if the law is passed without amending the Constitution.

Workers Party

Workers Party president Rashed Khan Menon said many questions have been raised about this law which needs to be discussed.

He proposed formation of a constitutional council to form the Election Commission. He also proposed to send the names given by the search committee to the business advisory committee of the parliament as he said it would be very inclusive regarding formation of the EC.

Menon also demanded that at least the names proposed by the search committee be made public and that the president will later appointed CEC and ECs from them after considering public opinion.

Jatiya Party's Fakhrul Imam said if this law is passed without amending Article 48 of the constitution, it will be in conflict with the constitution.

He proposed to include MPs in the Search Committee.

Jatiya Party's Mujibul Haque Chunnu said that the present Election Commission is 100% dependent on bureaucrats. "Is there no one in Bangladesh who can be trusted except judges and bureaucrats? Why we cannot trust politicians or MPs? Awami League says that they were not born in the cantonment-- then why should you rely on judges and bureaucrats?”

Chunnu proposed to keep two MPs as members in the search committee.

Another JP MP Raushan Ara Mannan said if the law is passed in a hurry without discussion, there will be instability in the country again.

“I hope the government will form an EC with people acceptable to all while maintaining transparency and efficiency. Then the country will be calm.”

Gonoforum MP Mokabbir Khan said that the the law that we had proposed during the dialogue with the president, was not reflected in the proposed law. The law didn’t match with Bangabandhu's aspirations.

The law minister, however, refuted MPs criticism against the law.

“On the allegation that all misdeeds of the two EC’s formed through the search committee was given impunity in the proposed law,” Anisul Haq said that no one was given indemnity in the law.

He said indemnity and legal coverage are not the same thing.

This law provides legal coverage to the past two ECs. If anyone was involved in wrong doings, s/he has not been given protection under the law.

On the allegation that the bill was enacted hurriedly, Anisul Haq said he had actually told that it would be difficult to enact the law in parliament within a limited time during the ongoing Covid-19 pandemic. I said this out of respect for the Parliament.

In this context, the minister said a delegation of Sujan even proposed to enact the law through promulgating ordinance in case of time shortage. But I told them that I will not pass this law by passing the parliament.

The minister also said all the political parties who had participated or didn’t participate in the dialogue with President, had proposed to form the election commission through enacting a new law in line with the Constitution.

Anisul said during the dialogue with AL on January 17, the president had expressed his views on formation of this law. We didn’t make hurry to enact the law.

“The necessity of enactment of the law has been discussing for a long time. This law was discussed in 2017 when the political parties had a dialogue with the Prime Minister. Prime Minister had asked to enact this law at that time,” the law minister said.

He said that after the process of enacting this law, those who spoke outside, had no tools to try to create a movement. That is why they are now telling why the law was enacted so hurriedly. They are telling that the proposed law is not aimed at formation of the EC, it was enacted for formation of the search committee.

Regarding the proposal to form the search committee in the law, the law minister said that the political parties had agreed in 2012 to form a search committee on formation of the EC. It did not come from imagination nor did it fall from the sky. It is not a new discovery.

He said that two ECs were formed through the search committee. Due to which it has gained acceptance. As a result, eliciting public opinion has already been done in the last 10 years.

On the demand of appointment of MPs over the search committee, the minister said there is nothing in the law that MPs will not be able to appoint in the search committee.

“The criteria of prominent citizens were not mentioned in the law.  It is the jurisdiction of the president [who will be able to do that].”