Unilateral CEC appointment: Missed opportunity

The opposition political parties have expressed surprise and distress at the appointment of the new CEC without consultation with them. The main opposition AL has rejected outright the appointment of the new CEC, terming it a "unilateral decision of the government completely ignoring the nation's expectations." The AL has also ruled out the possibility of co-operating with the new CEC.

Jatiya Party (Monju) and Communist Party of Bangladesh have expressed their unhappiness at the appointment of the new CEC without discussion with the opposition parties. The left 11-party alliance has said that the appointment of the new CEC is not acceptable to them, as the government did not pay heed to the opposition parties' demand of discussion. More reaction is expected shortly from other opposition political parties, civil society leaders, and others. However, it is almost certain that the appointment of the new CEC without consulting the opposition parties, particularly the main opposition party in parliament, has for the moment forestalled the possibility of any conciliation between the government and the main opposition over the present political impasse.

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The newly appointed CEC Justice M A Aziz has told the media that he is above politics and he will try his best to serve the nation. He believes that the opposition parties will eventually accept him.

The government ruled out the opposition demand for appointing the new CEC through consultation with the opposition parties on the following grounds:

(a) According to the constitution of the country, the appointment of the CEC is the exclusive prerogative of the government.

(b) The AL government did not discuss the appointment of M A Syed as the CEC with the opposition.

Let me address the first point first. The constitution provides that there shall be an Election Commission for Bangladesh consisting of a Chief Election Commissioner (CEC) and such number of other Election Commissioners (ECs), if any, as the President may from time to time direct, and the appointment of the CEC and other ECs shall, subject to any law made in that behalf, be made by the President.

It thus appears that appointment of other ECs is not mandatory and the Election Commission may consist of the CEC only. It may be mentioned that the constitution of Sri Lanka provides for a Commissioner of Elections, who is appointed by the President and holds office during good behaviour. Our constitution is silent on the eligibility of the person to be appointed the CEC. The constitution has also not provided the detailed procedure for appointment of the CEC. No law determining the eligibility of the person to be appointed the CEC and making provision for consultation with the opposition parties, in particular with the Leader of the Opposition, for appointing the CEC has yet been enacted.

As a result, there have been continuous allegations during the last three decades or so that successive governments have appointed persons as the CEC who were sympathetic to them. The allegations are not totally baseless. It may be mentioned in this connection that the constitutions in some of our neighbouring countries such as Pakistan, Nepal and Fiji have spelt out the eligibility of the person to be appointed the CEC.

More importantly, a close look into the present provision of the constitution regarding appointment of the CEC reveals that there is no bar to discussion with the opposition parties, particularly with the main opposition party in parliament, before making appointment to the post of the CEC.

Further, according to the constitution, the President is the final authority for approving appointment to the post of the CEC. This provision existed even prior to the Constitution (Twelfth Amendment) Act, 1991 that reintroduced parliamentary system of government. Although the executive organ of the republic includes the President, yet he is a separate entity independent of the political party/ alliance that forms the government.

So, the government's claim that the constitution has given it the exclusive prerogative to appoint the CEC is a matter of interpretation. It may be noted that the 1990 constitution of our neighbouring country Nepal provides for a Constitutional Council to make recommendations for appointment to the constitutional bodies including the Election Commission. The Leader of the Opposition in the House of Representatives is one of the members of this council that recommends appointment of the CEC.

Let me turn to the second point. When the media people asked the Minister for Law, Justice and Parliamentary Affairs Moudud Ahmed as to why the government did not discuss the appointment of the new CEC with the opposition parties, his reply was that the AL government did not discuss the appointment of M A Syed as the CEC with the opposition parties. He has, however, been frank to admit that such a culture (of discussion) has not yet developed in Bangladesh. The political culture of Bangladesh is that one party does not like another. That is why that culture has not developed.

It is a fact that in the past no discussion took place between the party government(s) and the opposition over the appointment of the CEC. The Prime Minister of the immediate past AL government and president of her party has, however, claimed that she sent at least two letters to the then Leader of the Opposition (Begum Khaleda Zia) inviting her to a dialogue before the appointment of the immediate past CEC MA Syed, but there was no response.

There has as yet been no denial from the government. Moreover, the importance of holding such consultation can hardly be denied. Why could not the BNP-led alliance government start the process? In the greater national interest, the government in power must have a conciliatory attitude and should not suffer from egotism.

Who knows that a prior consultation with the main opposition AL would not have led to its acceptance of the appointment of Justice MA Aziz as the CEC, who was confirmed as a Judge of the High Court Division during the time of the immediate past AL government. Consultation with the major political parties, in particular with the main opposition party in parliament, on the appointment of the new CEC would have definitely enhanced the image of the government.

M. Abdul Latif Mondal is a former Secretary to the government.