There should be a consensus between the government and the opposition on the salient features of the law, failing which it may not be workable.***

Following his dialogue with 24 political parties, including the ruling AL and the main opposition BNP, President Zillur Rahman has sent his recommendations to the cabinet division to form an Election Commission (EC). The tenure of the present EC expires next month.

The president has stressed that the government enact a law in line with the constitution to form an EC. He has suggested that if it is not possible to enact a law due to time constraint, then a search committee comprising a judge of the Appellate Division nominated by the chief justice (CJ), chairman of PSC, chairman of ACC, comptroller and auditor-general and a judge of the High Court Division nominated by the CJ may be constituted to identify persons suitable for appointment as chief election commissioner (CEC) and election commissioners. The judge of the Appellate Division will head the committee. The president has also suggested that the search committee may be formed with competent persons other than those suggested above.

In the absence of a law to regulate the appointments of the CEC and other election commissioners in the past thirty-nine years, their appointments have been at the pleasure of the government. Successive party governments have generally appointed sympathisers to their cause, particularly to influence the general elections to parliament

The parties that took part in the dialogue expressed their views on the formation of the EC, which are: (a) enacting a law to form an EC in line with the constitution and constituting a search committee; (b) constituting a search committee; and (c) reinstatement of caretaker government (CTG) system and formation of a search committee.

An analysis of the views shows that most of the parties favoured enactment of a law to form the EC and constitution of a search committee comprising a judge of the Supreme Court and the chiefs of the constitutional bodies, excepting that of the EC.

On the other hand, BNP has said that it will not accept any search committee for constituting the next EC without a decision for restoring the CTG. It needs no repetition that the bone of contention between the government and the opposition is the caretaker issue. Not only BNR but some other political parties, including Gonoforum, Bikolpodhara, Krishok Sromik Janata Dal, Bangladesh Samajtantrik Dal (Khalequzzaman), have advocated for reinstatement of the CTG.

As reported in the media, some leaders of the ruling alliance think that the president should hold a dialogue with the political parties to find a solution to the CTG issue, which may help overcome the present political impasse.

The media has also been advocating for a solution of the CTG issue. In its editorial of January 18, The Daily Star wrote: "If the Prime Minister has a serious intent to resolve bone of contention i.e. caretaker issue she should use the good offices of the President to this end."

BNP's main demand at the moment is restoration of CTG. But it can extend its cooperation in enacting a law on formation of the EC without compromising its position on the CTG system. It should realise that the reconstituted EC will have a five-year tenure, irrespective of whether CTG system is reinstated or not. Further, enactment of a law on appointment of CEC and election commissioners will fulfill a constitutional requirement.

Let us look into the issue regarding constitution of a search committee. The draft law prepared by the incumbent EC on appointment of CEC and election commissioners suggests constitution of a search committee consisting of CEC, a High Court Division judge, chairman of the AntiCorruption Commission, chairman of the Public Service Commission and comptroller and auditor-general.

Transparency International Bangladesh (TIB) has urged the government to ensure participation of BNP in the process of formation of a search committee. Many others feel that it would be wise to constitute a search committee with representatives of the party/alliance in power and the opposition. If they can reach a consensus on the panel of persons suitable for appointment as CEC and election commissioners, subsequent complications in appointments to these posts may be avoided.

Further, our experience with the search committees consisting of persons in the service of the republic for searching out persons suitable for appointment as chairman and commissioners in the Anti-Corruption Commission during the time of the immediate past BNP government as well as for appointment as chief information commissioner and other information commissioners during the time of the present AL government, is not pleasant. There were allegations that selection was made on partisan basis. The allegations were not baseless. This is because the persons in the service of the republic are generally under an obligation to fulfill the desire of the party in power. That is why the president has also suggested constituting a search committee comprising persons other than those in the service of the republic. The draft law of the EC suggests that the search committee will prepare a three-member panel for each of the vacant posts of CEC and election commissioners, and send such panels to the Prime Minister's Office for examination and consideration of the Parliament's business advisory committee (BAC) headed by the speaker. The president will appoint anyone from the panel finalised by the BAC as commissioner or CEC, as the case may be. This proposition has certain demerits. We know that because of the constitutional obligation, the president has no choice but to approve appointment of the person(s) recommended by the PM from the panel. So, the political bias in these appointments may not be averted.

The law should provide that the BAC shall finalise the name(s) of those to be appointed from the panels prepared by the search committee in its meetings attended by the PM and the leader of the opposition or their nominees. In that case, there will be no scope for recommendation of a different name from the PMO. The approval of the president will thus become a routine matter.

All these points should be taken into consideration while finalising the law to constitute the EC. More importantly, there should be a consensus between the government and the opposition on the salient features of the law, failing which it may not be workable.

The writer is a former Secretary. E-mail: Iatifn43@gmail.com