Five questions about the president’s dialogues

It seems like deja vu in Bangladeshi politics. As President Abdul Hamid is holding dialogues with various political parties to seek suggestions for members to form the search committee for the next Election Commission, it has brought back the memories of 2012 and 2017.

Similar processes were followed by President Zillur Rahman and President Abdul Hamid to appoint "search committees" for the election commissions. The commissions appointed through the process held two general elections in 2014 and 2018, respectively. Referring to two previous occasions, some are reminding us of the famous quote of Karl Marx from the book "The Eighteenth Brumaire of Louis Bonaparte," where he wrote, "Hegel remarks somewhere that all great world historic facts and personages appear, so to speak, twice. He forgot to add: the first time as (a) tragedy, the second time as (a) farce." But what happens when the same appears the third time is something yet to be seen.

Some have called the dialogues "a farce," while others have described these meetings as "photo sessions." The beginning of the dialogues was interesting as the party which has the distinct honour of being concurrently the ruling party and the opposition has reportedly "requested" the president to appoint the spouse of a senior party leader as a member of the Election Commission. Another party, which has been a partner of the ruling coalition since 2009, said it wants the president's intervention in enacting a law regarding setting up an Election Commission. Although stipulated in the constitution, a law on Election Commission appointment process has not been enacted in the past 50 years. The leaders of the party in question have neither spoken about it before nor taken initiative to draw the attention of the ruling coalition. Raising the issue after Law Minister Anisul Huq already said that the government was in no rush to enact the law—citing time constraints—is interesting. "It is impossible to formulate the law for EC formation within this short time," the minister said, although there are instances of passing laws and amending the constitution within an even shorter time—in haste and without any demands from the citizens at large.

There's no denying that enacting a law will not bring solutions to all the ills with the current electoral system, particularly the role played by the commission in the past two general elections. But that would have been a step in the right direction. Instead, now the discussion is on who will be on the search committee. The discussion seems to move in a circle every five years, whereas the entire electoral system has collapsed in plain sight.

However, as the discussions on the search committee continue to dominate the news cycle and public discourse, five questions need to be asked.

First, the constitutionality of appointing a search committee remains questionable. The constitution stipulates that the president would appoint the members of the Election Commission, and it also stipulates that a law will guide the appointments. Nowhere is there a reference to a search committee. Of course, the president can seek advice and recommendations, if he chooses to do so. But the question is why the president is selecting the search committee when a law would be sufficient to do so. Despite a clear alternative, the president's choice of a search committee warrants an explanation which is not forthcoming.

Second, from the experience of 2012 and 2017, it is logical to ask why a system that cannot deliver acceptable elections in the country should be followed. Doing the same thing over and over again and expecting different results indicates there is no desire to learn from the past. It is not understandable why two consecutive experiences are not considered enough to learn. Those who have invented and those who have implemented the idea could have gone through some introspection.

Third, what is the eligibility to become a member of the search committee to be appointed by the president? We are unaware whether the political parties were told of any qualifications of the potential nominees for the search committee or for the Election Commission. It has been twice that the political parties have recommended names to the president, but it has never come to light what qualifications they considered for those recommendations. Perhaps we should also consider that a political party would not suggest a name whom it considered as unhelpful.

Fourth, have those who served on such committees before ever said on what basis they prepared the list they sent to the president? Those who have participated in a nomination process, especially which involves recruitment, know well they must first decide what kind of qualifications they deem fit and what kind of candidates they will consider eligible. The responsibilities are clearly articulated in the constitution, but it is imperative to know what the search committee has considered as qualifications to serve in this capacity. Considering the importance of the Election Commission, particularly given the political environment, the search committee should keep the nation informed of their recommendations so that the nation can evaluate. One can raise the question of the candidates' privacy, but as these individuals have consented to being nominated by the political parties, they should allow the public scrutiny.

The fifth question is: can the president really do anything? Article 48 (3) of the Constitution of Bangladesh stipulates that "in the exercise of all his functions, save only that of appointing the Prime Minister pursuant to clause (3) of article 56 and the Chief Justice pursuant to clause (1) of article 95, the President shall act in accordance with the advice of the Prime Minister." Yet, often we have hoped that the president would do something. Such an optimism lies in Article 48 (5), which states, "The Prime Minister shall … submit for the consideration of the Cabinet any matter which the President may request him to refer to it."

This kind of optimism is not new; I myself have tried to draw attention to these provisions of the constitution multiple times in the wake of the political crisis in 2013. It is worth recalling that around that time, six prominent citizens—Kamal Hossain, Shahdeen Malik, Jamilur Reza Chowdhury, Akbar Ali Khan, Sultana Kamal and Badiul Alam Majumdar—met President Abdul Hamid and requested him to take the initiative to solve the crisis. But everyone knows what followed. Recently, 37 citizens made statements expressing hope that the president would act in the light of Article 48 (5). Their optimism is nothing short of grabbing the last straw. But if experience is any guide, there is not much to be expected.

As such, in the past weeks, discussions on elections have been put in a circular mode as to the composition of the search committee and the Election Commission, not why and how the electoral system has lost its appeal to the citizens, and how it has collapsed entirely since 2014. It is essential to have an independent and powerful Election Commission, but the commission alone cannot deliver a free and fair election. The lesson of 11 elections held in Bangladesh since 1973 is that a free, fair, and participatory election cannot be held under a partisan government. The prerequisite for holding a free election is a non-partisan government. It has become more difficult to have a non-partisan administration than ever because of the unabashed politicisation of the administration.

One can ask what the incentive for the ruling party is to change the system. It is the ruling party which scrapped the system that ensured free and fair elections. There is no reason for them to revert. But the past seven years, especially since 2018, have provided incontrovertible evidence that a non-partisan government is a sine qua non for a free and fair election. It has become incumbent on the opposition parties to create a pathway for restoring the citizens' right to vote and holding a free election. It is the responsibility of the opposition parties, not of a single party alone. The question is whether they are all able to demand in a united voice. Only that will chart the future course. It is upon the opposition to decide whether they will spend the time discussing the dialogue and Election Commission formation or find ways to restore citizens' rights.

Ali Riaz is distinguished professor of political science at Illinois State University and a non-resident senior fellow of the Atlantic Council.