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Election Commission and its Problems

The credibility of the election largely depends on the degree of confidence enjoyed by the Chief Election Commissioner. Hence, the office of the Chief Election Commissioner should be fllled-in-by such person who has general acceptability in the political circle. \

by Burhanuddin Ahammad
THE Election Commission as per provision of clause (4) of article 118 of the constitution is independent in the e^erpjse.pf its functions and subject only to the constitution and any other law.
The appointment of the Chief Election Commissioner and other Election Commissioners is made by the President for a term of five years commencing from the date they enter upon their office. Once they are appointed, they cannot, as per provisions of the constitution, be removed from their offices except in like manner and on the like grounds as a Judge of the Supreme Court.
Now let us see what is the procedure that is required to be followed for the removal of a Judge of the Supreme Court from his office. The constitution lays down in this behalf that if the President receives any information either from the Supreme Judicial Council consisting of the Chief Justice of Bangladesh and the two next senior Judges or from any other source and he has reason to apprehend that a Judge may have ceased to be capable of properly performing the functions of his
office by reason of physical or mental incapacity or may have been guilty of gross misconduct, the President may direct the council to enquire into the matter and report its finding to him. If after making the enquiry. the Supreme Judicial Council reports to the President that the Judge has ceased to be capable of properly performing the functions of his office or has been guilty of gross misconduct. the President shall, by order, remove the Judge from his office.
Since the procedure prescribed by the constitution for the removal of a Judge of the Supreme Court has also been made applicable in the case of removal of the Chief Election Commissioner and the Election Commissioner, it is not understood as to how the Chief Election commissioner or the Election Commissioner is made to vacate his office much before the expiry of his term without undergoing the procedure pre-
scribed for this purpose by the constitution. We have up till now witnessed uncerlmonious and untimely departure of as many as five Chief Election Commissioners from their office following the persistent demand from certain political quarters for the reconstitution of the Election Commission. This process of vacation of office by the Chief Election Commissioner or the Election Commissioner is not in conformity with the express provision of the constitution which Is the supreme law of the land. If any Chief Election Commissioner or the Election Commissioner is guilty of playing a partisan role to further the cause of election of a particular political party or the candidate, well, he has no legal or moral right to perpetuate in the office. But what I want to emphasize is that he should be made to vacate the'office through due process of law and not through any other means that undermine
the position of the Commission.
Now, a few words about the importance of the credibility of the election. The credibility of the election largely depends on the degree of confidence enjoyed by the Chief Election Commissioner. Hence, the office of the Chief Election Commissioner should be filled in by such person who has general acceptability in the political circle. This objective can be achieved under a party government if the appointment of the Chief Election Commissioner is made by the President in consultation with the leader of the opposition and while the country is under the caretaker government in consultation wdth the leaders of the major political parties.
At the moment, the appointment of the Chief Election Commissioner is regulated by clause (1) of article 118 of the Constitution. This clause, so far the appointment of the chief
Election Commissioner relates, does not make any provision for consultation by the President with the leader of the opposition or any other political party. So, provision for this purpose has to be made by an amendment of the said clause.
Recently, a demand has been voiced by a leader of the opposition party for appointing a Judge of the Supreme Court as Chief Election Commissioner. This demand appears to be worth consideration from the point of view that the Judges are usually regarded by all as nonpartisan in the performance of their functions. Their integrity is not ordinarily questioned. But in view of the provisions in clause (1) of article 99 of the Constitution, which, amongst others, provides that a person who has held office as a Judge shall not hold?after his retirement, any office of profit in the service of the Republic not being a judicial or quasi-judicial of-
fice. the demand for appointment of a Judge either as Chief Election Commissioner or as ■ an*election Commissioner can-
uqless these, offices .
Cfirtifgh en enactment of law are declared as quasi-judicial office.
Another major problem of the Election Commission is that the Election Commission has no alternative but to depend on the Deputy Commissioners and the TNO/UNO for the conduct of elections. Since these officers are under the administrative control of the government. the Commission, as a matter of fact, has no effective devise to regulate their activities relating to elections. This view finds confirmation in the results of the election to Parliament held in February, 1996 and in 1988. The Commission should, therefore, appoint its own officers as Returning Officer and Assistant Returning Officer and for their effective functioning, if necessary, their status should be upgraded to. commensurate with their enhanced responsibilities.
The writer is former Deputy Secretary. Election Commission.