Bangladesh finally has a legal framework for selecting the chief election commissioner and other members of the Election Commission, after parliament passed the "Appointment of the Chief Election Commissioner and Election Commissioners Bill-2022" on Thursday, January 27.

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

Earlier at the start of the week, Huq had tabled the bill as expected in parliament 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 (January 26), chairman of the committee M Shahiduzzaman Sarker placed the committee report with some changes in the original Bill.

Once signed into law by the president, the law will provide legal cover to all activities of the previous search committees formed for the purpose of selecting the EC.

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

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

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.

Question of process

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."

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.

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 the absence of a 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 February 14. The cabinet approved the draft of appointing CEC and other election commissioners on January 17.

Knives out

Prior to and in the aftermath of the EC law being passed, election experts asserted that the legislation in its current iteration grants too much power to the prime minister in the process of appointing the chief election commissioner and election commissioners, which may hamper the holding of free and fair elections.

Experts said there is no scope for the president to take a decision on anything other than the appointment of the prime minister and the chief justice under Article 48 (3) of the Constitution. Any other decision of the president has to follow the advice of the head of the executive branch, and that is the prime minister.

As a result, giving the president the power to select the members of the Election Commission as well as two members of the search committee would give the prime minister undue influence in the formation of the commission, they argued.

Members of civil society suggested that the leader of the house in parliament, leader of the opposition, and leader of the third largest political party in parliament nominate members of the search committee instead of the president.

"The prime minister will definitely play a key role in forming the election commission as per the bill, as the president has to take all decisions by following her advice," said election expert Dr Badiul Alam Majumdar.

"The EC will not be independent and accountable to the people under the proposed law, as they will be appointed on the will of the prime minister," he added.

He further called for the names recommended by search committees to be made public, so that all stakeholders could give their opinions on the candidates before the Election Commission was formed.

Speakers at a a Shujan roundtable on the eve of the passage said it is not acceptable to rush the passage of the Election Commission appointment bill without seeking the views of all stakeholders, although the initiative to enact the law is promising. They called for the participation of citizens and all political parties in scrutinizing the bill, and to ensure transparency in the activities of the search committee that will recommend the appointments at the EC under the proposed law.

The virtual roundtable meeting, titled "Proposed Election Commission Appointments Act: People's Aspirations and Actions", was conducted by leading political scientist Dr Rounaq Jahan.

Badiul Alam Majumder at the roundtable said there was no provision in the current bill to ensure transparency in the activities of the search committee.

"The law being made is completely unreasonable. It will lead to another controversial election under a controversial Election Commission selected through a search committee loyal to the government," he added.

He stressed the need to ensure transparency in the activities of the search committee to remove any doubts about the EC appointment process.

Former chief election commissioner Dr ATM Shamsul Huda, taking part in the webinar/roundtable, said: "Our proposal was to have a former chief election commissioner in the search committee, as he has practical experience in conducting elections. The names recommended by the search committee will go to a parliamentary hearing, where discussions will take place. The names being recommended should be disclosed to the public."

Former election commissioner Brigadier General M Sakhawat Hossain said two factors needed to be borne in mind when considering candidates for the Election Commission: Whether the candidates are neutral, and whether they have the ability and courage to enforce the law.

Dhaka University Prof Asif Nazrul claimed the current bill would only fulfill the will of the government.

"Without ensuring the neutrality of the government, it is not possible to ensure fair elections with the EC law alone," he added.

Dr Rounaq Jahan said: "It is clear from the discussion that everyone agrees on two issues. Political consensus and transparency should be brought into the appointment process in the commission. Although it is difficult to build political consensus against the political reality of our country, it is possible to ensure transparency with the goodwill of the government."

The main opposition's position

BNP Secretary General Mirza Fakhrul Islam Alamgir on Thursday said that his party as well as the people do not accept the Election Commission formation bill passed in parliament as a law.

Speaking at a discussion, the former state minister also said the current parliament has no moral rights and jurisdiction to pass the bill since it was not elected with people's votes.

He alleged that the bill was passed by the parliament very hastily, and warned that it will not help prevent the fall of the current regime.

"We don't accept the bill on the Election Commission. This bill is not only unacceptable to us, but also to the people of the country. No one will abide by the bill as it's not acceptable to people," Mirza Fakhrul said.

BNP's Dhaka north and south city units jointly arranged the programme at the Jatiya Press Club marking the introduction of one-party rule by Father of the Nation Bangabandhu Sheikh Mujibur Rahman in January, 1975 - ostensibly to end widespread corruption and improve the lives of the marginalized working class.

Recalling that Baksal was formed in just 11 minutes in parliament, Fakhrul said the bill was also passed hurriedly after it had been tabled on January 23 and approved by the cabinet on January 17.

"Awami League introduced Baksal that day as part of their efforts to save themselves. They've now enacted the Election Commission law thinking that they will survive through it. But they have forgotten that Baksal couldn't finally protect them. So, the law on the Election Commission can't protect them ultimately," the BNP leader said.

About their party's position on the next polls, Fakhrul said their party will not join any national election under Sheikh Hasina's government as they do not want to be caught in the toils of Baksal again.

He said the government must quit and hand over power to a non-party neutral administration which will arrange a credible election by forming the Election Commission in consultations with all political parties. "People's representatives will be elected through the polls and they will determine how they'll run the country."

The EU is watching

On the same day, the European Union (EU) ambassador to Bangladesh Charles Whiteley appreciated the government's "very open approach" towards foreign observers for the next national election, as the EU is keen to follow the polls closely, reported our sister newsagency UNB.

"I would say we very much welcomed the statement by the foreign minister (AK Abdul Momen) the other day where he said Bangladesh would welcome and have an open approach to any foreign observation missions that would wish to come and follow the elections," he said.

The diplomat made the remarks while responding to a question at an event titled "Meet the Reporters" hosted by the Dhaka Reporters' Unity (DRU) at its Nasrul Hamid Auditorium. DRU president Nazrul Islam Mithu and general secretary Nurul Islam Hasib also spoke at the event.

The EU envoy said they follow elections closely all around the world and every year they identify 30 priority countries for EU election observation missions. "And so those priorities for 2023 haven't yet been established."

Ambassador Whiteley clearly said the elections are of great interest and they have a very wide ranging relationship with Bangladesh; and that includes engagement in governance and other issues.

"I think that shows a very open approach and we're certainly keen to follow the elections closely with that in mind," he said, mentioning that they have seen the steps that the government is now taking in terms of the relevant law.

Earlier in his opening remarks, the ambassador said they are often referred to as the development partner in their relations with Bangladesh. "But the relationship isn't just about development. You know, the relationship is far more intense and wide ranging now than the traditional development partner relationship we had for many years."

He said they will celebrate with Bangladesh to commemorate those 50 years and look forward to the coming decades to further deepen the relations and importantly to witness the transition of Bangladesh into developing country status from an LDC status.

The ambassador said there are challenges on the path to transition and he thinks the government is well aware of those challenges.