Election Commission reforms for independence, accountability and democracy
Monday, 16 July 2007
Masihur Rahman
THE Election Commission has taken initiative for an ordinance to streamline appointment of the Commissioners, define the independence of the Commission, and regulate the political parties in certain matters. It is no easy task, for the most critical elements of democratic politics are being addressed at a time when politics is encaged and faces trial. Agreed solutions to issues of collective social interest emerge from contestations among the people and the electoral parties. There is no pre-determined unique best solution. The claim that the solutions are known and that their imposition would cure society of all ills manifests a barrenness authoritarian mindset with fundamentalist inclinations.
Constitutional mandate & instruments for independence: The Constitution declares:
"The Election Commission shall be independent in the exercise of its functions and subject only to this Constitution and any other law." [Article 118(4)].
The Election Commission cannot be subjected to the control of or subordination to any other organs of the government in respect of election. Any law or administrative arrangement which detracts from independent exercise of the functions of the Election Commission violates the Constitution.
The Election Commission is responsible for preparation of the electoral roll for general election and its conduct, election of the President, and delimitation of the constituencies. Parliament can make law in all these matters for 'securing the due Constitution of Parliament' which would oust the Commission's jurisdiction. No such law has been made, however. Law gives the Commission the additional responsibility for elections to local government bodies. Note the expression 'due constitution' which, in a strict sense, would render illegitimate any election which does not reflect free exercise of franchise by the voters. [Article 119, 124]
The Constitution makes similar assertions of independence of the Supreme Court and the Comptroller and Auditor General:
"Subject to the provisions of this Constitution, the Chief Justice and the other Judges shall be independent in the exercise of their judicial functions." [Article 94(4)]
"The Comptroller and Auditor General, in exercise of his functions . . . shall not be subject to the direction or control of any other person or authority." [128(4)]
The jurisdiction of court in judicial matters extends to all persons and institutions. Similarly, remit of the Auditor General extends to the accounts of all courts and all authorities / officers of the government as well as the public accounts of the Republic. Independence granted by the Constitution is limited to the domain of the respective functions of the institutions, not in other matters. (The public account holds the money received by government except as revenue, loan and grant.)
The principal instruments for securing independence are appointment for a fixed term and security of tenure ensured though a special procedure for early removal.
"The term of office of an Election Commissioner is five years from the date on which he enters upon his office....An Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court." [Article 118(3 & 5]
The Chief Justice of the Supreme Court and the two Judges next in seniority constitute the permanent Supreme Judicial Council. (The composition changes if the enquiry is directed to the members.) The Election Commissioners, like the Judges, can be removed from office for mental or physical incapacity to discharge their responsibility and misconduct. The President initiates the proceedings by SJC on information received from SJC or any other source. The President dismisses the Election Commissioners if the charges are established. [Article 95(5)]
There is little public knowledge about what activates SJC and how the result of enquiry is used. While a simple reading of the constitutional text suggests automatic trigger, at least to the naïve, the mechanism seems too complex to be used and be effective. No proceedings had been initiated against the immediate past Election Commissioners who (allegedly) falsified the electoral roll for partisan considerations and showed incompetence or dereliction of duty. When the present government mounted pressure, they resigned promptly. Their corrupt patrons by then had lost the power to protect them.
The constitutional protection is designed to enable the high officers of the Republic to discharge their functions without extraneous interference or influence, particularly by the executive. The protection is not meant to save them when they abuse their office. Abuse and dereliction of office are crimes against the Constitutional State which should draw the severest punishment.
An additional measure is to debar the Election Commissioners from further employment by the government. The Chief Election Commissioner is ineligible for any office of the Republic; the other Commissioners also are ineligible for any office of the Republic except that of the Chief Election Commissioner. [Article 118(3)]
There is a similar restriction on the Auditor General who, 'after ceasing to hold the office, is not eligible for further office in the service of the Republic'. A. K. Brohi, an eminent jurist of Pakistan, explains that the restriction pre-empts any prospective temptation and is thus a fool-proof protection for the integrity of the Auditor General. [The Fundamental Law of Pakistan which is commentary on Pakistan Constitution of 1956]
Eligibility criteria of limited help: The qualifications, the conditions of appointment, number of the Election Commissioners are left open. These may be determined by law or by order of the President that has the force of law. The particular instrument used (law / order) is of minor significance; the crucial issue is whether an ordinance can contain arbitrariness and improve quality of the Commissioners if the selection process remains opaque.
The ordinance may fix the minimum and maximum number of the Commissioners - say 3-5 - rather than a precise number; the actual number for appointment may be determined on the basis of the work load for the particular period. If elections to parliament and local council bodies are held simultaneously, the load gets too heavy in a particular year and requires a much larger Election Commission including officers and staff. For most time thereafter, there will be light load. It is inefficient like investment in electricity to meet high peak demand. (We revert to simultaneous vs. spaced elections below.)
The ordinance may prescribe the qualifications for Election Commissioners, from which no meaningful improvement should be expected, however. Retired or serving Supreme Court Judges and retired Secretaries and District Judges have been appointed Chief Election Commissioner and Election Commissioner. At present, there is also a retired Brigadier General as Election Commissioner, which is a departure from the past trend but justified by the key responsibilities taken by the armed forces. No eligibility criteria can make such people ineligible and still claim credibility.
Determination of the upper age limit presents a complex problem. The government officials and subordinate Judges retire at fifty-seven years of age, while the Supreme Court Judges are superannuated at sixty-seven years of age. If appointed to the Election Commission for one term only, the retired Supreme Court Judges would serve until 72 years of age. The retired government officials and the subordinate judges can serve that long if appointed for three terms (57+5+5+5 =72). The widely divergent age of superannuation admits of no easy solution.
The legitimacy of appointment of the serving Supreme Court Judges has often been questioned. The issue depends on determining whether the Election Commission is mainly a judicial body responsible for adjudication or an executive body responsible for holding election, with certain judicial powers incidental thereto. The terms quasi-judicial and quasi-executive say little about the relative weight of either.
Open process for appointment -- consider UK model: Although qualifications have not been fixed, the government has never appointed persons who had not held high public office or lacked formal qualifications (Supreme Court Judge, retired Secretary & District Judge). No government can make a better choice. The Commissioners were criticised because of failure of 'public morality' - i.e. standing by the duty of office - a quality that is necessary for high office and is tested only by challenge.
The Election Commissioners, including the Chief Commissioner, are chosen by the executive authority 'in camera' without any public input - it is essentially private choice of individuals for high offices of the Republic. The method of selection in camera, by nature secretive as decisions by cabbala, cannot be free from the prejudices and inadequate knowledge of the small group which makes the choice.
The best solution is to adopt an open and public process of selection. Note that open and public are the two qualities of the process.
The government may consider adopting the model of UK for appointment of Election Commissioners set up by law in 2000. The two major elements of the model, relevant to the present discussion, are the Speaker's Committee and appointment by the Queen's Address to the Commons. The Speaker's Committee comprises the Secretary of State ex-officio (Home Minister), Secretary responsible for local government (appointed by Prime Minister), and six (backbench) members of the Commons appointed by the Speaker. The Committee includes opposition by members and is broad based.
The Queen's Address, proposing the appointments, is introduced in the Commons with the agreement of the Speaker and after consulting the parties which have two ore more MPs. The Speaker's Committee secures consensus. Any proposal raised in parliament permits as well as encourages public debate on the quality of the persons proposed. The process is both open and public. Here is a recent proof of the benefit of open public selection: the fiasco of the Chief Counsel for ACC could be avoided had an open and public selection process been followed.
The institutional authority of the Speaker, together with the broad based composition of the committee, explains why the UK model works. The Speaker is chosen by consensus among the parties; when she contest for election, the ballot paper says 'Speaker - seeking re-election' - the Speaker is not identified with any party. She wins the first election as a party candidate; but once elected Speaker, all party connections are severed.
There are three pre-conditions for the model to work in Bangladesh. First, re-define the institution of the Speaker and adapt the election procedures accordingly. Second, make the Speaker's Committee broad based with the senior members of the parties in Parliament, but exclude the independents. Third, allocate membership of the Committee proportionate to popular votes, which corrects the imbalance caused by the excess seats.
Two flawed suggestions made sometimes for appointment of the Election Commissioners need to be dismissed. First the trivial one: The government may set a search committee to recommend a short list of eligible candidates, from which the government makes the choice. The committee formed in this manner itself carries the stigma of appointment by the cabbala and fails the test of being both open and public.
The second is more serious: The President may be given powers to make the appointments independently and free from any political advice or influence. The President has no institutional mechanism other than that used by the government to verify the quality of the persons. The President, being the creature of the majority party, is most likely to further the party's interest, regardless of the source and manner of advice to him. Alternatively, he may overturn the democratic cart which, fuelled by public mandate, is driven by the Prime Minister.
In the Westminster type government, the President is the creature of the majority party and does not have any independent power except for the respect that the party and the bureaucracy show to the Constitution. Dr. Badruddoza Choudhury helplessly escaped from Bangabhavan; Dr. Iajuddin Ahmad was impotent despite being the trinity of power as President, Chief Adviser, and Commander-in-Chief. Nothing was of avail as the bureaucracy, including disciplined forces, ignored the constitutional order and owed allegiance elsewhere.
The writer, a Ph.D., is a retired secretary to government and writes on economic and policy issues. More next
THE Election Commission has taken initiative for an ordinance to streamline appointment of the Commissioners, define the independence of the Commission, and regulate the political parties in certain matters. It is no easy task, for the most critical elements of democratic politics are being addressed at a time when politics is encaged and faces trial. Agreed solutions to issues of collective social interest emerge from contestations among the people and the electoral parties. There is no pre-determined unique best solution. The claim that the solutions are known and that their imposition would cure society of all ills manifests a barrenness authoritarian mindset with fundamentalist inclinations.
Constitutional mandate & instruments for independence: The Constitution declares:
"The Election Commission shall be independent in the exercise of its functions and subject only to this Constitution and any other law." [Article 118(4)].
The Election Commission cannot be subjected to the control of or subordination to any other organs of the government in respect of election. Any law or administrative arrangement which detracts from independent exercise of the functions of the Election Commission violates the Constitution.
The Election Commission is responsible for preparation of the electoral roll for general election and its conduct, election of the President, and delimitation of the constituencies. Parliament can make law in all these matters for 'securing the due Constitution of Parliament' which would oust the Commission's jurisdiction. No such law has been made, however. Law gives the Commission the additional responsibility for elections to local government bodies. Note the expression 'due constitution' which, in a strict sense, would render illegitimate any election which does not reflect free exercise of franchise by the voters. [Article 119, 124]
The Constitution makes similar assertions of independence of the Supreme Court and the Comptroller and Auditor General:
"Subject to the provisions of this Constitution, the Chief Justice and the other Judges shall be independent in the exercise of their judicial functions." [Article 94(4)]
"The Comptroller and Auditor General, in exercise of his functions . . . shall not be subject to the direction or control of any other person or authority." [128(4)]
The jurisdiction of court in judicial matters extends to all persons and institutions. Similarly, remit of the Auditor General extends to the accounts of all courts and all authorities / officers of the government as well as the public accounts of the Republic. Independence granted by the Constitution is limited to the domain of the respective functions of the institutions, not in other matters. (The public account holds the money received by government except as revenue, loan and grant.)
The principal instruments for securing independence are appointment for a fixed term and security of tenure ensured though a special procedure for early removal.
"The term of office of an Election Commissioner is five years from the date on which he enters upon his office....An Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court." [Article 118(3 & 5]
The Chief Justice of the Supreme Court and the two Judges next in seniority constitute the permanent Supreme Judicial Council. (The composition changes if the enquiry is directed to the members.) The Election Commissioners, like the Judges, can be removed from office for mental or physical incapacity to discharge their responsibility and misconduct. The President initiates the proceedings by SJC on information received from SJC or any other source. The President dismisses the Election Commissioners if the charges are established. [Article 95(5)]
There is little public knowledge about what activates SJC and how the result of enquiry is used. While a simple reading of the constitutional text suggests automatic trigger, at least to the naïve, the mechanism seems too complex to be used and be effective. No proceedings had been initiated against the immediate past Election Commissioners who (allegedly) falsified the electoral roll for partisan considerations and showed incompetence or dereliction of duty. When the present government mounted pressure, they resigned promptly. Their corrupt patrons by then had lost the power to protect them.
The constitutional protection is designed to enable the high officers of the Republic to discharge their functions without extraneous interference or influence, particularly by the executive. The protection is not meant to save them when they abuse their office. Abuse and dereliction of office are crimes against the Constitutional State which should draw the severest punishment.
An additional measure is to debar the Election Commissioners from further employment by the government. The Chief Election Commissioner is ineligible for any office of the Republic; the other Commissioners also are ineligible for any office of the Republic except that of the Chief Election Commissioner. [Article 118(3)]
There is a similar restriction on the Auditor General who, 'after ceasing to hold the office, is not eligible for further office in the service of the Republic'. A. K. Brohi, an eminent jurist of Pakistan, explains that the restriction pre-empts any prospective temptation and is thus a fool-proof protection for the integrity of the Auditor General. [The Fundamental Law of Pakistan which is commentary on Pakistan Constitution of 1956]
Eligibility criteria of limited help: The qualifications, the conditions of appointment, number of the Election Commissioners are left open. These may be determined by law or by order of the President that has the force of law. The particular instrument used (law / order) is of minor significance; the crucial issue is whether an ordinance can contain arbitrariness and improve quality of the Commissioners if the selection process remains opaque.
The ordinance may fix the minimum and maximum number of the Commissioners - say 3-5 - rather than a precise number; the actual number for appointment may be determined on the basis of the work load for the particular period. If elections to parliament and local council bodies are held simultaneously, the load gets too heavy in a particular year and requires a much larger Election Commission including officers and staff. For most time thereafter, there will be light load. It is inefficient like investment in electricity to meet high peak demand. (We revert to simultaneous vs. spaced elections below.)
The ordinance may prescribe the qualifications for Election Commissioners, from which no meaningful improvement should be expected, however. Retired or serving Supreme Court Judges and retired Secretaries and District Judges have been appointed Chief Election Commissioner and Election Commissioner. At present, there is also a retired Brigadier General as Election Commissioner, which is a departure from the past trend but justified by the key responsibilities taken by the armed forces. No eligibility criteria can make such people ineligible and still claim credibility.
Determination of the upper age limit presents a complex problem. The government officials and subordinate Judges retire at fifty-seven years of age, while the Supreme Court Judges are superannuated at sixty-seven years of age. If appointed to the Election Commission for one term only, the retired Supreme Court Judges would serve until 72 years of age. The retired government officials and the subordinate judges can serve that long if appointed for three terms (57+5+5+5 =72). The widely divergent age of superannuation admits of no easy solution.
The legitimacy of appointment of the serving Supreme Court Judges has often been questioned. The issue depends on determining whether the Election Commission is mainly a judicial body responsible for adjudication or an executive body responsible for holding election, with certain judicial powers incidental thereto. The terms quasi-judicial and quasi-executive say little about the relative weight of either.
Open process for appointment -- consider UK model: Although qualifications have not been fixed, the government has never appointed persons who had not held high public office or lacked formal qualifications (Supreme Court Judge, retired Secretary & District Judge). No government can make a better choice. The Commissioners were criticised because of failure of 'public morality' - i.e. standing by the duty of office - a quality that is necessary for high office and is tested only by challenge.
The Election Commissioners, including the Chief Commissioner, are chosen by the executive authority 'in camera' without any public input - it is essentially private choice of individuals for high offices of the Republic. The method of selection in camera, by nature secretive as decisions by cabbala, cannot be free from the prejudices and inadequate knowledge of the small group which makes the choice.
The best solution is to adopt an open and public process of selection. Note that open and public are the two qualities of the process.
The government may consider adopting the model of UK for appointment of Election Commissioners set up by law in 2000. The two major elements of the model, relevant to the present discussion, are the Speaker's Committee and appointment by the Queen's Address to the Commons. The Speaker's Committee comprises the Secretary of State ex-officio (Home Minister), Secretary responsible for local government (appointed by Prime Minister), and six (backbench) members of the Commons appointed by the Speaker. The Committee includes opposition by members and is broad based.
The Queen's Address, proposing the appointments, is introduced in the Commons with the agreement of the Speaker and after consulting the parties which have two ore more MPs. The Speaker's Committee secures consensus. Any proposal raised in parliament permits as well as encourages public debate on the quality of the persons proposed. The process is both open and public. Here is a recent proof of the benefit of open public selection: the fiasco of the Chief Counsel for ACC could be avoided had an open and public selection process been followed.
The institutional authority of the Speaker, together with the broad based composition of the committee, explains why the UK model works. The Speaker is chosen by consensus among the parties; when she contest for election, the ballot paper says 'Speaker - seeking re-election' - the Speaker is not identified with any party. She wins the first election as a party candidate; but once elected Speaker, all party connections are severed.
There are three pre-conditions for the model to work in Bangladesh. First, re-define the institution of the Speaker and adapt the election procedures accordingly. Second, make the Speaker's Committee broad based with the senior members of the parties in Parliament, but exclude the independents. Third, allocate membership of the Committee proportionate to popular votes, which corrects the imbalance caused by the excess seats.
Two flawed suggestions made sometimes for appointment of the Election Commissioners need to be dismissed. First the trivial one: The government may set a search committee to recommend a short list of eligible candidates, from which the government makes the choice. The committee formed in this manner itself carries the stigma of appointment by the cabbala and fails the test of being both open and public.
The second is more serious: The President may be given powers to make the appointments independently and free from any political advice or influence. The President has no institutional mechanism other than that used by the government to verify the quality of the persons. The President, being the creature of the majority party, is most likely to further the party's interest, regardless of the source and manner of advice to him. Alternatively, he may overturn the democratic cart which, fuelled by public mandate, is driven by the Prime Minister.
In the Westminster type government, the President is the creature of the majority party and does not have any independent power except for the respect that the party and the bureaucracy show to the Constitution. Dr. Badruddoza Choudhury helplessly escaped from Bangabhavan; Dr. Iajuddin Ahmad was impotent despite being the trinity of power as President, Chief Adviser, and Commander-in-Chief. Nothing was of avail as the bureaucracy, including disciplined forces, ignored the constitutional order and owed allegiance elsewhere.
The writer, a Ph.D., is a retired secretary to government and writes on economic and policy issues. More next