For a long time, Citizens for Good Governance (Shujan) has advocated for neutral search committees to make appointments to constitutional and statutory bodies. We believe that only through such a process can honest, courageous and competent persons be appointed. However, the search committee recently formed by the government to appoint the chief and other election commissioners has already created serious controversies. Such controversies will only make the committee’s task more challenging.
On January 12, the president, after holding dialogues with 23 political parties, proposed a law for appointing the CEC and other election commissioners. The proposal also included the formation of a five-member search committee, comprised of two justices — one from the Appellate Division and the other from the High Court Division — to be recommended by the chief justice, the chairman of the PSC, the auditor and accountant general and the chairman of the ACC. The president’s proposal also called for inclusion of other “competent” persons to the committee.
Subsequently, the Cabinet Division announced, via a circular, the formation of a four-member Search Committee, which included Justice Syed Mahmud Hossain, Justice Md. Nuruzzaman, PSC Chairman A.T. Ahmedul Huq Chowdhury and the Comptroller and Accountant General Ahmed Ataul Hakeem. The Committee was given 10-working days to submit its recommendations and the authority to formulate its own modus operandi.
The formation of the Committee has raised serious questions: Firstly, why was the Committee formed by a circular rather than by framing a law? A law specifying qualifications/disqualifications of the election commissioners is important to identify appropriate persons for the positions, and might also be used by political parties and others to propose names to the Committee. Incidentally, Article 118(1) of our Constitution mandates enacting of such a law.
Our experiences with search committees are quite disappointing as they failed to prevent the appointment of partisan persons to important public positions in the past. For example, during the last government, an individual who sought parliamentary nomination on the BNP ticket was made election commissioner. And, under the present government, there are allegations of partisan affiliation against some of the appointees to the Information Commission, Human Rights Commission (HRC) and ACC. More seriously, a professor was appointed to the HRC, despite well-publicised accusations of sexual harassment by a student. (He was quickly sacked, also without due process.)
Framing a law to govern the appointment to the EC would not be a difficult task. Last year, the EC circulated a two-page draft of the law, which the government ignored. Reportedly, the president also sent a draft law to the government with his recommendations. The law could also specify the rules of operation of the Committee. Since the Parliament was not in session, an ordinance could be promulgated.
A second question: Why were elected representatives not included in the Search Committee? It is hard to believe that the present government, which has abolished the unelected Caretaker Government (CTG), has failed to involve elected representatives in the search process for EC members. Even the EC draft law provided for the involvement of the Business Advisory Committee of the Parliament in this process. The government could at least include two MPs to represent the prime minister and leader of the opposition in the Search Committee. Also, since the Search Committee was constituted with unelected persons, the inclusion of representatives of the civil society or the media would have enhanced its acceptability.
A third question: Why have justices been included in the Search Committee? In a case involving the Thirteenth Amendment, the Appellate Division had previously asked that the justices be kept out of the future CTG in order to avoid further damage to the judiciary. We are thus surprised that the chief justice did not oppose the inclusion of the justices in the Committee. We also question why these particular justices were chosen. With utmost reluctance, we point out that one of the two justices included in the Search Committee was elected as the general secretary and president of the Dhaka Bar from the Awami League panel. Under the present government, he became a deputy attorney general in January 2009 and then justice of the High Court in June 2009 (New Age, January 28). Additionally, there are allegations of preference for the ruling party on the part of another member of the Committee.
A fourth question: Why did the government show disrespect to the president by refusing to include the chairman of ACC in the Committee? Is it because of his vocal opposition to the government’s efforts to make the ACC a “toothless tiger?” Such a decision signals that the government did not want to take the “risk” of including an independent minded person in the Committee. Thus, the controversy compounds.
The government may claim that it wanted to constitute the Search Committee solely with representatives of the constitutional bodies. Unfortunately, however, our experiences show that holding constitutional positions does not guarantee a person’s honesty and effectiveness. But, if appointments to the Search Committee must be made from representatives of the constitutional bodies, a sensible option would have been to induct the departing CEC. Over the last five years, the CEC and other two commissioners invested their time, energy and talent to raise the EC to a position of respect and acceptability; thus, they could be counted on to resist the appointment of any disreputed persons to the EC who might tarnish its image. Incidentally, was the Cabinet Division, rather than the EC, selected to give secretarial service to the Committee because it is subject to the government’s control?
The controversy that already surrounds the formation of the Search Committee will only make its task of appointing an acceptable Election Commission more challenging. We believe that transparency and accountability in its functioning are necessary to help the Committee successfully meet this challenge. One suggestion is for the Search Committee to make its meetings open so that representatives of political parties, the media and the civil society might attend. This would constitute an application of “sunshine law” which, in many countries, requires decisions of government agencies (with some exceptions) to be made openly in public meetings.
Another way to ensure transparency: the Committee could publicly announce the names of the persons under consideration, the names of those to be finally recommended to the president for appointment, and the reasons for these recommendations. This would help weed out persons of questionable backgrounds. Additionally, the Committee could hold public hearings. Since the Committee has been given the authority to determine its own rules of operation, it has the power to build transparency into its own functioning.
To conclude, we hope that the Committee will realise the seriousness of the responsibility given to it and the consequences of not discharging it with honesty and neutrality. Given our political culture, we know that whatever names the Committee proposes will be instantly and without hesitation rejected by the opposition. However, if the new Election Commission, appointed through the recommendations of the Search Committee, fails to win the confidence of the civil society and the media, the nation will head toward a serious crisis with possibly ominous consequences.
The writer is Secretary, Citizens for Good Governance.
Reference by: The Daily Star, 31st January 2012