It will be a 'good gesture' by Prime Minister Sheikh Hasina if her government consults with BNP and other political parties to form the new Election Commission next February even though her government is not legally obligated to seek others' opinion on the issue. The BNP may keep raising the demand for consultation. But, there will be nothing wrong in the eyes of the law if the government unilaterally forms the new EC after expiry of the tenure of the current one.
The constitution provides the prime minister absolute powers regarding the formation of the EC through appointing the chief election commissioner and other election commissioners. In no other Saarc country does the head of the state or the head of the government enjoy such sweeping powers.
According to article 118 (1) of our constitution, the president will make the appointment of the CEC and other election commissioners. The appointments are supposed to be subject to the provisions of a law. But the law has not been made over the past four decades. In absence of the law, the power remains in the hands of the president. But interestingly, the president cannot exercise the power on his own. There is a constitutional bar on him. He needs the advice of the prime minister to appoint an individual as the CEC or election commissioner. Therefore, the powers in real sense are exercised by the prime minister, not the president. And the prime minister alone is constitutionally empowered to advise the president to act without consulting with ministers or others.
The constitutional provision in India, the largest democracy in the world, is almost the same as the one that exists in our constitution. The president appoints the CEC and election commissioners. But he acts on the advice of the council of ministers-led by the prime minister. The council of ministers collectively advise the president to make the appointments. Besides, a healthy culture has developed over the years and a history of a strong EC play a pivotal role in making the appointments free of controversy.
Other Saarc countries — Pakistan, Sri Lanka, Nepal, Bhutan and Maldives — however have developed effective mechanisms to constitute their ECs through consultations and scrutiny.
The present constitutional provisions regarding formation of EC speaks about Pakistan's efforts to further improve the political culture. Since 2010, a number of amendments to the constitution were brought to improve the appointment process of the CEC and other election commissioners. According to the present provisions, the prime minister shall, in consultation with the leader of the opposition in the National Assembly, forward three names for appointment of the commissioner to a parliamentary committee for hearing and confirmation of any one person.
The parliamentary committee to be constituted by the Speaker shall comprise of fifty percent members from the treasury bench and fifty percent from the opposition parties, based on their strength in parliament, to be nominated by the respective parliamentary leaders. The total strength of the parliamentary committee shall be twelve members out of which one-third shall be from the Senate. In case there is no consensus between the prime minister and the leader of the opposition, each shall forward separate lists to the parliamentary committee for consideration, which may confirm any one name. Then the president will appoint him or her as the CEC or an election commissioner.
With the amendments to the constitution, the Pakistan parliament has been empowered. And the provision for holding hearing by the parliamentary committee has paved the way for making better appointments to constitute the EC.
In Sri Lanka, there is a constitution council led by the Speaker of the parliament. The council consists of the prime minister, opposition leader in parliament, one MP appointed by the president, five persons including two MPs appointed by the president on the nomination of both the prime minister and the opposition leader, one MP nominated by agreement of the majority of the MPs belonging to political parties or independent groups, other than the respective political parties or independent groups to which the prime minister and the opposition leader belong, and appointed by the president. On recommendation of the constitutional council, the president appoints the CEC and other election commissioners.
In Nepal, the president, on the recommendation of the constitutional council led by the prime minister, appoints the CEC and election commissioners. According to its new constitution, the constitutional council consists of the premier, the chief justice, the Speakers of both Houses, leader of the opposition and deputy speaker of the House of Representatives
The King of Bhutan cannot exercise any absolute power to make any appointments to the EC. He has to appoint the CEC and other election commissioners from a list of names recommended jointly by the prime minister, the chief justice, the Speaker, the leader and the opposition leader of the parliament.
The existing constitutional provision in Maldives looks more innovative. The president shall appoint as EC those persons approved by a majority of the parliament from the names submitted to it. A separate law has been enacted in line with the constitutional provision. According to the law, whenever it is necessary to make any appointment to the EC, the president submits to parliament the names of the nominated members.
The constitution of Afghanistan says an independent EC will be established under the provision of the law. According to the law, the president appoints CEC and other election commissioners from a list prepared by a select committee. The select committee consists of the Speakers of both Houses of the parliament, chief justice, and chairperson of the Independent Commission for Oversight of the Implementation of the Constitution, chairperson of the Afghan Independent Human Rights Commission and one person from the civil society organisations related to elections. The members of the selection committee elect their chairperson.
The above examples of constitutional provisions existing in other Saarc countries show how centralised the powers of constituting the EC are in Bangladesh.
A proposal for introduction of a hearing system for the appointments to any constitutional body had been raised during our constitutional amendments in 2011. The parliamentary special committee for the constitutional amendments had discussed the proposal at one of its meetings. But it could not proceed with the proposal due to lack of interest of the high-ups of the then government.
Some amendments however were brought to constitutional provisions regarding the appointment and functions of the EC. One amendment has fixed the number of EC members to five. But there was no fundamental change.
Should we learn something from the practices from other Saarc countries, let alone the practices in other developed democracies, to make better appointments to the EC?
The writer is Senior Reporter, The Daily Star.