15 February, 2012
M. Serajul Islam
The ruling party’s contention that the President has acted constitutionally in choosing the new Election Commission is borne out by Article 118 of the Constitution. The Article empowers the President to do so. The article also states the need to enact laws under which the President would act in this context has never been done.
With all the tall claims made of the 1972 Constitution, it is not what its supporters claim to be. It is far from being the perfect constitution; it has too many lacunas to which the present government has added a few more by the amendments it has made since coming to power. In the context of Article 118 that empowers the President to appoint the EC, this lacuna is clearly evident as it comes into conflict with Article 48 (C) that gives the President only two powers that he can exercise independent of the Prime Minister. He has the power to appoint the Prime Minister under Article 56, clause 3 and the Chief Justice under Article 95 clause (1) only without recommendation of the Prime Minister. Article 118 is thus in direct conflict with Article 48 (C).
Then there are also powers of the President in his role as the Commander-in-Chief where the 1972 constitution’s imperfection becomes obvious. We are all aware of the predicament to which President Biswas had threatened to take the country in 1996 acting under Article 61. These conflicts and contradictions notwithstanding, the 1972 Constitution have been modeled after the British Constitution with certain provisions drawn from the Indian Constitution. In drawing inspiration from the British Constitution, the 1972 Constitution clearly envisaged that the President would be merely a titular head like the British Monarch and simply sign on the dotted lines on the recommendation of the Prime Minister.
The ruling party’s sudden decision to make the office of the President powerful and allow him to act independent of the Prime Minster in choosing the politically critical EC, apart from the inherent contradiction, is clearly a political ploy to counteract the BNP’s demand for the Caretaker Government. With all due respect and regards to the President, there is no reason to believe that he and the Search Committee that he constituted has in anyway acted independently to choose the EC. They have come up with the EC that the Prime Minister would have recommended in any case, as all Prime Ministers before her had done and as she herself had done in her last tenure as Prime Ministers in 1996-2001.
The ruling party’s claim that the new EC would meet the opposition’s demand for the restoration of the Caretaker Government is however not as straight forward. Its claim that the choice of the EC has been transparent and that the new EC is a neutral one is also suspect. Clearly, the EC that has been chosen has become questionable on count of two of the members. The BNP has said that one was a member of the Janatar Mancha on 1996 and another was a member of the student front of the ruling party in his days as a student. The CEC is not one who has been in the public eye like the former Public Service Chairman Dr. Sadat Hossain or Dr. Akbar Ali Khan. Hence his claim to neutrality cannot be as easily established as claims to the contrary by the BNP.
Nevertheless, the President’s office, assuming that the President has acted out of his own constitutional powers and wisdom, must come out immediately and resolve the charges against two of the commissioners. If the charge against one of connections with the Mancha is correct, then the credibility of the entire process would become palpably suspect. Anyone who went to the Mancha in 1996 can be the best of anything that makes a civil bureaucrat but he cannot be neutral when it comes to the BNP. Then there are the questions that have come to light over the election process of the Search Committee. One of the names they recommended to the President was an individual who was removed from his position in a NGO on charges of corruption. Apart from serious questions over its legality, its work has also been pretty shoddy. Clearly this Search Committee has helped choose an EC like the one the BNP had chosen before the last EC was constituted. The fate of the Commissioners of that EC is well known.
The ruling party used the excuse of democracy to abolish the CG system claiming that unelected individuals cannot hold a democratic election. In giving the Search Committee the right to recommend the names of the new EC, the President has given un-elected people the power to elect a new EC that he believes would be able to hold a free and fair election. If he or those who advised him had read Article 118 carefully, they would have known that the Article pointed at the parliament to come with laws to help the President elect an EC democratically which has not been the case. In fact, till the ruling party came up with this innovative idea of the Search Committee, it was the elected Prime Minister who had recommended the names of the CEC and the other Election Commissioners since the fall of Ershad’s dictatorship. The Prime Minister seems to have given up this power that had come to be her by convention to an unelected set of bureaucrats! Three cheers for democracy!
The BNP’s claim that the Search Committee is unconstitutional, the President’s power under Article 118 notwithstanding, is thus a valid one. Therefore they have a right to reject the new EC, there case strengthened by the fact that there are members in the new EC whose credentials are questionable on the issue of neutrality. The claim of the ruling party that the process has been transparent is also a lame one. When the process has failed to take on board the major opposition for whatever is the reason, the process as well as the choice of the new EC becomes suspect for politics is not always about legality; in fact most of it is reality. The reality is too nightmarish to contemplate for the sake of the country in the event the BNP does not go to the polls.
The whole issue before the nation today is not the new EC but whether the BNP can be convinced that the EC could be a substitute for the CG system. The ruling party has made its case weaker by choosing a questionable EC. It is the same EC as has been all ECs in the past, dependent on the government for manpower to hold the elections. The crucial officials in the next elections for holding the polls would be provided by the Interim Government to he headed by the AL and in all probability it would be Sheikh Hasina who would be the Prime Minister of the Interim Government. That these officials have meantime been politicized in favour of the ruling party is an added negative factor.
While the ruling party has been taking a lot of mileage out of the municipal elections to claim that the EC under it can hold free elections, it must not be forgotten that the ECs request for the army deployment in the Narayanganj polls was turned down although by law the government had no right to do so. Also, the municipal elections in Chittagong, Narayanganj and Comilla were fair because of the incredible role of the media and the infighting within the ruling party; factors that would be absent in the next national polls.
Thus even if the ruling party accepts the BNP’s demand for the CG, the new EC would still be suspect because of the allegations against it. Without the CG, it would be unfair and unrealistic to believe that the BNP would go to polls under this EC. The new CEC and his colleagues must therefore prepare themselves for a long winter of BNP’s discontent much like former CEC Justice MA Aziz.
The writer is a former Ambassador to Japan.