The country could not avoid but to test the bitter experience of election commission led by Justice M.A. Aziz in 2005. Magura by election, 2.1 million spurious voter list had not only completely dissurfaced the credibility and trust from mind of the opposition but also from the general people.
As a result in the wake of the history, the country had to journey through a longest emergency situation that made to the public in 11th January of 2007. Although the most controversial appointment of the then CEC M.A. Aziz sought to be declared as illegal and ultra vires of the constitution by the case of Ad. Ruhul Quddus Vs. J.M.A Aziz (60 DLR AD).
After all, in the meantime the election commission had been reconstituted led by ATM Shamsul Huda and other two commissioners under the non party caretaker govt. After holding 9th parliamentary election, Chittagong, Narayangong and finally Comilla city corporation election the reconstituted election commission has expired as stipulated in Article 118(3) of the constitution.
It is the constitutional duty of the president to appoint the ECs as necessary but does not cross four in number. The experience witnesses that never the appointment of ECs in the wake of electoral history had been beyond the debate but to be questioned. Similarly, the latest appointment of ECs by the president has not been cured from the wound of controversy. Hence it is to be noted that the latest controversy on the appointment is different from the past.
It is the first time the election commissioners have been chaired on duty through new process of ‘search committee’. This new concept of search committee has stormed of many controversies among the political and social spectrum. The main opposition BNP claimed on search committee to be violation of the constitution.
The constitution has empowered the president to appoint the ECs but the very article said nothing about the mechanism of the appointment. Here it is to be kept in mind that the president formed the search committee to be untouched from controversy, so search committee is nothing more but mere mechanism by which democracy can be properly institutionalized. Therefore, claim of the opposition remains fruitless.
Although Search Committee is not violation of the constitution but it is violation of the convention, one can question how convention would be violated by the search committee. The simplest answer is that there is resemblance between the appointment of election commissioners under Article 118 and appointment of the Supreme Court judges under Article 95 of the constitution. In case of Article 95 there is no parliamentary law to appoint the judges of the supreme court but the president is to appoint the judges to be maintained some conventions like basing upon seniority , qualifications etc (Idrisur Rahman Vs BD 61 DLR AD).
Like Supreme Court judges the election commissioners had been appointed complied with some conventions from 1972 till 2007, such as the name of proposed election commissioners would come from the Law and justice Affairs Ministry but in 2012 the president being gone out from the atmosphere of the convention appointed election commissioners through search committee that remains the convention to be violated.
Here again the question arises what is remedy or sanction for violation of the convention? No remedy or sanction in legal terms but if we go through the judgment of Ataur Rahman Vs BD 62 DLR HCD 394, their lordship opined that the convention in the legal vacuum ought not to be violated.
However all controversies centering to the appointment of the election commissiners has come to the end when the election commissioners being oathed in the hands of Chief Justice under paragraph 7 of 3rd schedule of the constitution. Now we have no option but to welcome the newly formed election commission. The newly formed election commission should not forget the challenges that appear in front of it.
Firstly, three commissioners have been appointed after being retired as joint secretary among the newly formed election commissioners this less experience may cause incompleteness at its routines.
Secondly, it is a great challenge for EC to be independent as mandated in Article 118 of the constitution. Now the first requirement for independence is to establish The Election Commission Secretariat Act although it has been enacted in 2009 but yet to be applied.
Thirdly, now the present EC cannot avoid the duty of restoring ‘no vote’ in Representation of People Order 1972.
Fourthly, it is the right of an electorate to know enough information about the candidates. It has been regarded as fundamental rights of an electorate by the case of PUSL Vs UNION OF INDIA 2003, 4 SSC.
Fifthly, the system of caretaker government has been proved inapplicable after enactment of 15th amendment Act of the constitution. That made a great distance between ruling and opposition parties. It is the main responsibility to hold a fair and impartial election by bringing all political parties on the same platform.
Sixthly, every time the controversy begins with the appointment of election commissioners. Constitution mandates the parliament to enact a law for appointing the election commissioners. But after forty years of the constitution, the required law is yet to be enacted. It is good news for us that last EC has drafted a law on the appointment. Now the main duty of the present commission is to turn the draft law into Act.
However, the fundamental challenges to the newly formed election commission are to hold fair and impartial election and to retain the integrity, neutrality of the commission. It is on to the EC how it would overcome these challenges.
Writer is Human Rights Activist and student of law, university of Dhaka
