What if the CEC and his partners do not resign?

Mozammel H. Khan

Published on February 13, 2007

 

 Much have been written and talked about the resignations of the CEC and his �partners of the crime�, especially following the verdict of the full bench of the appellate division of the Supreme Court. Two options were discussed regarding freeing the Election Commission (EC) from the grapple of its current occupants: voluntary resignations of the trio or their removal by the Supreme Judicial Council (SJC). Voluntary resignations in most cases happened from ethical consideration while the removal by the SJC comes under gross misconduct of which ethics is certainly an important component. The CEC and his fellow commissioner could likely be charged with five fundamental offences: firstly, unethical conduct, secondly, fraudulent practices, thirdly, breaking the oath of office, fourthly, illegal actions and finally, deliberate misappropriation of monetary resources from the national exchequer.

In philosophy, ethics defines what is good for the individual and for society and establishes the nature of duties that people owe themselves and one another. Though law often embodies ethical principals, law and ethics are far from coextensive. However, as there is a difference between law and ethics, just as there is a clear relationship between the two. As US Supreme Court Chief Justice, Earl Warren, observed nearly 40 years ago: �Law floats on a sea of ethics�. Such an observation broadens the periphery of ethics far beyond the jurisdiction of law. Obviously, the CEC and his cohorts have conducted themselves unethically on many counts since his appointment to this position as the principal vanguard to carry forward the most vital process of nation�s democratic exercise. Following the HC verdict of January 4, 2006, in the pretext of the so-called illness, he was allegedly working behind the curtain to collude with the government to appoint the two new commissioners to hand him the majority in the commission to carry forward with his personal agenda, a grim example of his unethical act.

In all matured democracies, as in Canada, there exists a constitutional post of ethics commissioner who is empowered to investigate any allegedly unethical conduct of any constitutional appointee, including the PM and the Governor General, and the recommendation of the commissioner has an implicit binding on the executive organ of the State. In the absence of such an authority, the resignation of CEC and the other two ECs, no matter how strong is the demand from the people, is absolutely dependant on their own conscience and ethical standard.

The next offence, namely the fraudulent practices of creating 15 to 20 million fictitious voters, was so wide spread that it filled the pages of the news media in vivid details over the last few weeks. However, publications of these detailed and specific deceptive practices of the EC failed to perturb the CEC and his colleagues even an iota. In fact, the CEC and the ECs tried to shield themselves from the public media in such a way as if they were working for a highly sensitive project of the Defence department. In addition to that, it came to public disclosure of how the CEC resorted to deceitful practices in dealing with the opinions and assertions of two of the recently retired ECs. According to disclosures of those two erstwhile ECs, the CEC distorted the content of the Minutes of EC meeting in which he fraudulently included that a decision was taken to make the new voter list. In reality, both the ECs had opined for updating the 2001 voter list and as such, both of them gave notes of dissent to the file containing the Minutes of the meeting. Nevertheless, the CEC�s lawyer has repeatedly presented to the court that a decision to make the new voter list was taken (implied consensus) in the EC meeting.

The third offence was breaking of the oath of office. The oath avouches, �I � do solemnly swear (or Affirm) that I will faithfully discharge the duties of my office according to law: That I will bear true faith and allegiance to Bangladesh: That I will preserve, protect and defend the Constitution: And that I will not allow my personal interest to influence my official conduct or my official decisions." Here again, defying the notes of dissent of the other two ECs, the CEC through his lone decision appointed hundreds of assistant registration officers, supervisors and enumerators from the ruling alliance cadres to create the coveted new voter list with the sole purpose of helping his appointers to carry out the alleged election engineering. In the face of the severe criticisms from the media of these partisan appointments, the CEC publicly defended his decision shrugging off with the comment, �so what if they are partisan, they are qualified�. Taking cue from the ruling party stalwarts, he blasted the media for destroying country�s image and termed the EC as merely a post box. In the first by-election held under his leadership, in response to the complaints made personally by the apparently defeated candidate the CEC's comments that, "I do not have miracle power to redress the situation" only reflected the synchronization of his words with his deeds. However, if the CEC had a little time to go back to the pages of history, he would have discovered a decision by a CEC named M Abu Hena, who not only exercised his constitutional, not miracle, power to withhold the result of a by-election contested by Kader Siddiqui against the then ruling party candidate, but also initiated executive and legal action against the returning officer.

The fourth offence is the flagrant violation of the electoral rolls rules, which do not authorize the EC to make new voter list before every general election. The Honourable HC in its judgement on January 4 interpreted the law, which was subsequently upheld by the Nation�s highest court. In this part of the offence, two questions arose vis-�-vis the conduct of the EC. Firstly, they deliberately defied the law and secondly they wilfully contemned the directives of the court. For defiance of the directive of the court, the CEC and ECs have been already issued with a contempt ruling by the honourable HC. For defiance of law, an important element of gross misconduct, the constitution empowers the SJC (consists of CJ and two other senior judges), which according to Article 96(5) of the constitution says, �Where, upon any information received from the Council or from any other source, the President has reason to apprehend that a Judge (ECs are also in that category) - (a) may have ceased to be capable of properly performing the functions of his office by reason of physical or mental incapacity, or (b) may have been guilty of gross misconduct, the President may direct the Council to inquire into the matter and report its finding.� However, Article 48(3) of the constitution restricts the power of President when it affirms, �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.� The current extremely partisan President (I wish him well) is following this clause of the constitution in its letter, not spirit. This was reflected in his utterly indecent written speech in the august parliament where he mentioned the name of the founding father of our nation as �Mujibur Rahman� instead of Sheikh Mujibur Rahman (to even his greatest detractor he was known as Sheikh Shaheb�), albeit I did not want him to be shown the door for adding the widely used appellation Bangabandhu in front of his name. In the same token, as the titular Head of State, he also, like the CEC, could not spare a few minutes of his time to give an audience to two outgoing ECs, both of whom had diligently served the nation for five long years. The fifth offence is the wilful misappropriation of the resources of the national exchequer to serve the vested interest. This act was not an error of judgement; it was deliberately done with the intent to achieve an evil objective. In the words of the former EC Mr. A K Mohammed Ali, �I am expressing with heavy heart that the CEC and the other two ECs, being the vanguard of the sacred and high powered Institution, through their illegal activities have misappropriated such a huge amount of money of our poor people. I am demanding with the clear term that the legal action must be initiated against them for their illegal activities� (Prothom Alo, May 25, 2006). If SJC is the only body that could initiate investigation, it has to depend on the President�s assent, which would be forthcoming if only the PM advises him to do so. However, the BNP Secretary General does not consider anything wrong (!) that the CEC and his colleagues have done to warrant their resignations. Moreover, the appointment of the CEC and the other two highly partisan commissioners were made at the advice of the PM, allegedly with an ulterior motive to influence the outcome of the next general election and they, accordingly, have, as a team, tried to meet that end. One would be living in fool�s paradise if he expects that the PM will order an SJC investigation against her own men.

In these scenario, the concerned citizens of the republic in general and the opposition political parties in particular are not left with any other options but to resort to street demonstrations to free the EC from the clutches of the people who have lost all their moral right and credibility to hold on to their positions. This surly will result in more violence, hartal, and losses of human lives, private and State properties in coming days. When (not if) that happens who would be responsible for that catastrophic eventualities?

Dr. Mozammel H. Khan is the Convenor of the Canadian Committee for Human Rights and Democracy in Bangladesh. He writes from Toronto, Canada.