Search Committee for EC: Transparency can counter confidence crisis

In a recent press briefing, Justice Obaidul Hassan, chair of the Search Committee for the Election Commission (EC), confirmed their decision not to disclose the names of the 10 individuals they will recommend to the president to constitute the new EC. This is deeply disappointing, and we are afraid that the pervasive crisis of confidence, which already exists in many citizens' minds regarding this whole process, will not be alleviated.

There is a widespread perception that the search committee does not really search for competent people for appointment to important institutions. The committee is believed to be normally confining its search to a list of individuals given by the government, and basically rubber stamping the names preferred by the authorities. A recent interview of former Justice Abdul Matin, who chaired and served on several such search committees, reinforces this perception (Prothom Alo, January 23, 2022).

The experience of appointing the KM Nurul Huda commission adds further currency to such belief. A Prothom Alo report (February 8, 2022) indicated that in 2017, the ruling party pre-selected four people—KM Nurul Huda, Rafiqul Islam, Kabita Khanam, and Brig Gen (retd) Shahadat Hossain Chowdhury—for appointment to the Election Commission and adopted a strategy to have those names repeatedly proposed by their coalition partners and allies. According to an interview given by Prof Manzoorul Islam to Prothom Alo (February 12, 2017), Nurul Huda's name for the position of chief election commissioner (CEC) was proposed by seven or eight parties, while Ali Imam Majumder's name was proposed by two. The search committee appeared to have tallied the names suggested by the political parties and recommended to the president the names proposed the most.

The search committee did not appear to have exercised due diligence in preparing the final panel for recommendation to the president. According to Black's Law Dictionary, due diligence means "such a measure of prudence, activity, or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent man under the particular circumstances; not measured by any absolute standard, but depending on the relative facts of the special case." By not exercising due diligence, the previous search committee appeared to have largely played the role of a post office.

If the search committee had exercised due diligence, they would have found out that Nurul Huda was a BCS officer from the special '73 batch, and he had been sent to forced retirement as a joint secretary by the BNP government in the early 2000s. After a court battle, he got his job back and retired as a secretary in 2006, and he did not seem to have served as a secretary even for a single day. There were also serious allegations of partisan behaviour during his career as a civil servant, and he was a victim of the BNP and a beneficiary of the Awami League. Given such a history, it would have been difficult to recommend Nurul Huda for the CEC position, had the process been transparent and the search committee exercised due diligence.

According to Section 4(1) of the Appointment of the Chief Election Commissioner and Other Election Commissioners Act, 2022, the search committee "shall act in accordance with the principles of transparency and neutrality and shall make recommendations to the President for appointment to the posts of Chief Election Commissioner and Election Commissioner, taking into consideration the qualifications, disqualifications, experience, honesty and reputation of the individuals, as described in this Act."

Clearly, the law mandates the search committee to act neutrally and transparently to find honest, competent, and reputed individuals to recommend to the president for EC constitution. Acting transparently will mean doing everything openly and not hiding anything; it will mean full, not partial disclosures. Thus, the search committee is obliged to disclose not only the names of the people proposed for its consideration, but also the names of those who proposed said names, as we requested on behalf of SHUJAN.

The law's requirement of recommending reputed individuals for EC appointment also requires disclosure of the names of the people being considered by the search committee, as there is no yardstick for measuring reputation other than public perception. Thus, only if the names are made public, and the citizens are given the opportunity to express their opinion, the committee will have a good idea as to whether the individuals they are considering have anything hidden in their closet. Only with full disclosure and allowing the citizens to share their views can the search committee act transparently—as well as be seen to have acted transparently.

It is argued that disclosing the names of those in the short list of 20 or the final list of 10, and their nominators, will create controversies and character assassinations. The disclosure is intended to get the truth out, not to assassinate anyone's character. In addition, if there is any controversy about anyone, it should come out before their names are recommended to the president, rather than after being appointed to the EC.

The Right to Information Act, 2009, too, makes it obligatory for the search committee to make public the proposed names for EC appointment, and the names of those who proposed said names. In "Badiul Alam Majumdar and others vs the state" case, a divisional bench of the High Court ruled that all information that the "authorities" have, even from the third parties, are public information—not secret or confidential—and are subject to disclosure.

Article 48(3) of our constitution requires the president to act on the prime minister's advice, except in the cases of appointing the chief Justice and the prime minister. If the search committee discloses the proposed names for the EC, along with a report justifying their recommendations, only then will we know whether the president's appointment came out of the committee's recommendation.

We strongly feel that the search committee's decision not to disclose the names of the panel it will propose to the president and of those who proposed those names is ill-conceived and will serve no public interest. We, therefore, respectfully request the committee to reconsider its decision. Otherwise, the pervasive crisis of confidence will continue to persist in the public psyche, which will not be in anyone's best interest.

Dr Badiul Alam Majumdar is the secretary of SHUJAN: Citizens for Good Governance.