Necessity of a Separate Law for the Election Commission in Bangladesh

In a democratic state, good governance depends on the electoral system of the country. Without a transparent and participatory election, democracy can not be ensured, resulting in severe violations of basic human rights and increased corruption. Moreover, the abuse of power by law enforceable agency and the independence of the judiciary begins to erode, leading to a lack of good governance at every level. For a transparent, fair, and participatory election, an independent election commission is necessary – which will be acceptable to every political party and the public. And it requires specific laws to be implemented because if a commission is formed without law, it is likely to be questioned. Article 118 of the Constitution instructs to form the Election Commission of Bangladesh. Article 118 elaborates the basic content of the formation of the Election Commission but doesn’t mention the details, and for the details of the formation a separate law is necessary. But in the 50 years of independence, no government has taken any initiative to enact a law to form an election commission. In the absence of a law, there are no specific criteria for the appointment of an election commission, nor are there any guidelines based on which a commission may be disqualified.  As a result, the whole process has given rise to controversy. And all these problems have arisen due to the lack of a separate law for the formation of the Election Commission. The formation of the Election Commission has been mentioned in accordance with Article 324 of the Constitution of the neighboring state of India. In The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 nothing is written in detail about the composition of the commission, although it is provided for other matters including salaries, allowances, and pensions of the Election Commission. On the other hand, Pakistan has enacted the Election Act, 2017. The powers and jurisdiction of the Election Commission are included in Chapter 2 of the said Act, but the composition of the Election Commission remains unclear, like Article 213 (1) of the Constitution. Due to the lack of a separate law on the constitution of the Election Commission of Bangladesh, various allegations against the Election Commission have been reported in the media from time to time. Recently in Bangladesh, 42 prominent citizens have sent another letter to the President in the second phase alleging severe misconduct and corruption against the Election Commission. If allegations of misconduct and corruption are made against the Election Commission itself, then it is natural to raise questions about the elections organized by the Commission. Because of the lack of a separate law, there is some ambiguity about the composition of the Election Commission. Consequently, there remains a possibility of arbitrariness within the Election Commission. Likewise, the letters given, twice in a row, by 42 prominent citizens raise those possibilities. Therefore, it is possible to free the Election Commission from controversy only by enacting a separate and clear law on the composition of the Election Commission.  The law will give clear instructions on the composition of the Election Commission, that is, we will have to enact a law according to Article 118 of the Constitution. Although there is a directive in 118 of the constitution to form an election commission, everything is not mentioned. So, everything must be clarified through the enactment of a new law. The enactment of this law will solve the existing problems, and the election commission will become acceptable to all citizens. In other words, the law will specify who can be a member of the Election Commission, who will be the Chief Election Commissioner, and will clearly state their qualifications.  Again, the law will clearly state the powers and authority of the Chief Election Commissioner and other commissioners.  By enacting the law, it will be possible to form an independent and impartial election commission. According to Article 118 (1) of the Constitution, the appointment of the Chief Election Commissioner and other Election Commissioners shall be subject to the provisions of any law made in that behalf, be made by the President. But this power of the President is conditional under Article 48(3) of the Constitution, as the President must consult the Prime Minister. The conditions mentioned in Article 48 (3) should be terminated to form an Independent Election Commission. If the law is enacted, the Chief Election Commissioner and other election commissioners will not be appointed as anyone’s wish because, in that case, the qualifications of the candidates will be determined by this law. Formation of the Election Commission through a specific law in accordance with the Constitution will make the Election Commission acceptable and impartial.

Writer: Md. Harisur Rohoman, Student of Law and Human Rights in University of Asia Pacific.