Nevertheless, today, the right of the people to choose their government is in serious jeopardy. In the January 2014 elections, less than 10% of the people of Bangladesh were able to vote. The BNP-led opposition has been blamed for it but the fact remains that an election where over 90% people were unable to vote for whatever the reason cannot by any definition be considered a legitimate election. Therefore there is a political stalemate in the country that needs to be resolved for the sake of the country.

The nature of the conflict-ridden politics of the country has contributed a great deal to the current political stalemate in the country. This roundtable will not go into that. Nevertheless, the seminar wishes to raise for discussion, first, that the current political stalemate is in fundamental conflict with the spirit of 1971 – the spirit for which millions sacrificed their lives and second, if allowed to continue, this political stalemate will not be conducive to the overall social, political and economic development of the country. For a country with 170 million people with unquestioned potential to become the most successful nation in South Asia, the only way for sustainable overall development is to restore democracy in the country by returning to the people their inalienable right to elect the government of their choice through a free and fair national election.

In the bleak political environment currently existing in the country, a small window of opportunity or hope for the restoration of democracy has opened with the fact that the present Election Commission that has woefully been responsible to a major extent for the right of the people to vote and elect their government being taken away from them, would be completing its tenure in February 2017. A new Chief Election Commissioner (CEC) with and 4 Election Commissioners would be selected under which the next election would be held. And that could bring back Bangladesh to its democratic foundations by restoring to the people their right to elect their government.

Although a great deal of blame has been placed on the political parties for the way democracy has become dysfunctional in the country; it is the present EC led by the Chief Election Commissioner (CEC) that has been to a great extent responsible for the way the January 2014 elections were held. Subsequently, the Election Commission has proved its utter failure and incompetence in the way it conducted the elections to the local bodies such that it is difficult to find people in the country who have faith in the ability of the EC to fulfill its constitutional obligation to conduct free and fair elections.

One of the worst disservices the present CEC and the EC has done to the country and in fact to the ruling party has been the fact that it totally capitulated to the needs and demands of those in power. It is an irony that the current Election Commission is elected and allowed to function under the same procedures and rules and regulations and with the same powers and responsibilities as the one over which a Bengali, Justice Abdus Sattar, also a former President of Bangladesh, had presided in 1970 as the Chief Election Commissioner (CEC) of Pakistan that had given Pakistan a free and fair election in which the Awami League under Bangabandhu Sheikh Mujibur Rahman had swept the elections. The current Election Commission constituted the same way delivered to the nation an election that has been the opposite of what Justice Sattar had delivered, an election that was neither free nor fair; one in which if anything was reflected it was certainly not the will of the people.

Of course the reason why the Election Commission over which Justice Sattar presided in 1970 and over which the present EC has presided in January 2014 have came out with diametrically opposite results; one truly reflecting the will of the people and the other reflecting the will and interests of the ruling party, has been the fact that the present Election Commission led by the present CEC has allowed itself to become totally subservient to the interests and the demands of the ruling party.

Bangladesh's independence in 1971 was expected to see that the people's right to elect their government would be the number one priority of independent Bangladesh. In fact, it is a right that should be placed ahead of its economic, social and political priorities for the simple reason that we became independent so that we would never ever face a situation where some group or groups, either a political party or extra-constitutional power, would have the impudence to interfere with the people's right to elect the government of their choice.

Unfortunately, that fundamental reason for the war of liberation was the first casualty in an independent Bangladesh. Between 1975 and 1991; the people had no choice and nothing to do with who governed the country. They were simply taken for granted and set aside. It was during the BNP's 1991-1996 tenure that the Awami League as the opposition party forced the BNP Government to amend the Constitution and insert the Caretaker Government  (CTG) reasoning that a Party Government conducting an election could not ensure free and fair election and only a neutral government could give the people the right to freely and fairly elect their government.

Upon coming to power in January 2009, the Awami League argued against the CTG and abolished it through the 15th Amendment to the Constitution in 2012, returning the responsibility of electing a new government to the incumbent government giving additional powers to the Prime Minister. Assuming that the intentions of the government were democratic as it argued that an unelected entity as the CTG could not help elect a democratic government, the ruling party had opened for the Election Commission the golden opportunity for executing the fundamental reason for which Bangladesh emerged as an independent country, namely to allow the people the opportunity to elect freely and fairly, the government of their choice.

An opportunity for establishing an Election Commission that would be powerful and neutral like the one over which Justice Sattar had presided in 1970 that had paved the way towards the independence of Bangladesh appeared in 2012 when President Zillur Rahman, at the request of the Prime Minister, had formed a Search Committee for selecting the CEC and the ECs of the current Election Commission. That initiative to select a new Election Commission in consultation with the stakeholders, namely the main political parties, had underlined that the AL-led government wanted to establish an independent and powerful Election Commission to replace the CTG system to allow the people to elect the government of their choice freely and fairly.

The Information Minister had pointed out, following the recent initiative of the BNP, that it was within its rights to recommend the formation of a Search Committee. He had further added that the BNP’s initiative would not affect the legal framework under which a new CEC and the ECs are selected. That legal framework is one where the Prime Minister recommends the names of the new CEC and the ECs  and the President is obliged to accept the recommendations.

 Perhaps the Information Minister forgot about late President Zillur Rahman's initiative of the Search Committee that had selected the present CEC and the ECs. Thus the ruling party itself has established the precedence that the new CEC and the ECs would be selected through a Search Committee that would choose the names of the new CEC and the ECs through a democratic process in consultations with the stakeholders.  It would not be out of place to recall the incumbent Prime Minister had also offered the opposition BNP some of the key Ministries in the election period government in 2014 to underline her seriousness and commitment that the people would be able to choose their government freely and fairly without interference. The Prime Minister's offer was not accepted by the BNP and the rest is history.

The role of the present Election Commission, in particular, that of the CEC has been  pathetic. The Election Commission that should have emerged as the key institution in resolving the concerns of the opposition in order to bring the opposition to the election was in a hurry to do the contrary and instead went ahead knowing what the outcome of the election would be; one in which the right of the people to vote, the sole motivating force of the War of Liberation, would be sadly taken away from them. The CEC and the EC argued that since the BNP did not come for the elections, the outcome, flawed as it has been, couldn't be questioned as being undemocratic, unconstitutional or illegal.

A slight deviation would underline the fundament error in the CEC’s argument if his commitment and intentions were to supervise a democratic election. In 2002, in another country far from our shores - in the USA – the Supreme Court of the state of New Jersey in a litigation involving election of US senator ruled that no matter what when the people go to vote it is the duty and responsibility of those in charge of conducting election to give the voters the choice to choose.

All the above said, Bangladesh is again at a historic crossroad looking to the election in the country in a little more than 2 years. Meanwhile, unless the political predicament and stalemate with which the country has lived since January 2014 is resolved restoring the inherent right of the people to choose their government through free and fair national election, the country would be dishonouring the sacrifices of the millions who have died in the war of liberation. History underlines unequivocally that there cannot be sustainable socio-economic and political development without democracy.

It is this prospect of despair, if democracy is not restored and people’s inherent right to choose their government through free and fair election, that has motivated Bangladeshis and their friends among the international community to focus on the next national elections as the only way out of its current dangerous stalemate. The European Union, among many others, has strongly urged all the political parties to seriously engage in negotiations for ensuring that the next elections would restore to the people of Bangladesh their right to vote and in the process remove the dangers facing the country and bring it back to the democratic and sustainable path of overall development.

The BNP has already placed before the country its own thoughts to resolve the political stalemate. The ruling party has dismissed it as "hollow" while others have pointed to the many limitations in the BNP document. These facts notwithstanding, the BNP document has brought to the political domain something for the political parties and the stakeholders to engage in a national dialogue to resolve the political stalemate that could very well become the hardest obstacle for the country's future if left unattended.

For the sake of the country, the ruling party should look at the document seriously because it is in its interest that a way should be found to hold the next elections with the participation of all the political parties or else its claim, as the upholder of the spirit of 1971 would be seriously questioned. Second, without the participation of all political parties in the next general election, the government's legitimacy would continue to remain questionable to most Bangladeshis as well as its friends and development partners as it has since Jan. 2014. Third, the country would need a government elected freely and fairly by the people to deal with the threat of international terrorism that appears to be gaining ground in Bangladesh. Finally, the ruling party owes to itself to go to the people to legitimize its claim for the significant strides in the economic development of the country under its stewardship.

The Dhaka Forum believes it is a part of the multitude of Bangladeshis who are convinced that the need of holding the next elections freely and fairly with the participation of all political parties is a matter of the highest national significance for the sake of the country’s future. It is by no means an Awami League or BNP matter but that of the people on whose behalf and with whose consent according to the country’s Constitution, a government earns its right to govern.  The Dhaka Forum sees a window of opportunity in the fact that the present Chief Election Commissioner (CEC) and the Election Commissioners would be completing their term in February 2017 and a newly constituted Election Commission adequately empowered to conduct free, fair and credible election, could deliver the country from its current political stalemate. 

The New Election Commission under a new CEC and ECs would be selected at perhaps the most critical period of the political history of the country. Therefore it should be selected with the utmost care so that no effort is left unexamined to give the country a CEC and ECs that would be capable and worthy to hold a free and fair national election. It is in this spirit that the following measures are proposed for selecting the new CEC and the ECs to ensure that it is well poised to carry out the historical responsibility of conducting the next national elections in a free and fair manner.

1. The Hon'ble Prime Minister must do what she did while selecting the present CEC and the Election Commissioners in 2011. She must again request the President to follow the same process as his predecessor the late President Zillur Rahman had done. She must request the President to constitute a Search Committee for selecting the new Chief Election Commissioner and the four Election Commissioners.

2. The Search Committee upon whom the President would entrust the sacred task of finding the new CEC and the four ECs must comprise of individuals of stature impeccable honesty and integrity. The neutrality of the Search Committee should be seen as the key to the success of selecting a new CEC and the Election Commissioners .

3. The Hon'ble President in the exercise of his constitutional powers should appoint the Search Committee after due consultations with all political parties eligible under the provisions of the Constitution. This would give credibility to the Search Committee. Any political party registered with the Election Commission must not be left out unless there are legal and/or constitutional bars to invite it for consultations to form the Search Committee

4. The Search Committee should be a small body. One of its members should be named as the Convener. The qualification of the members of the Search Committee including the Convener should be of the same as the members of the erstwhile Caretaker Government that were reached by consensus among the Awami League and its allies and the BNP and its allies in 1996.

5. The Search Committee once selected would thereafter undertake the onerous task of proposing the names of the Chief Election Commissioner and the Election Commissioners. The neutrality of the members of the Search Committee should be of the highest concern. Each and every action of the Search Committee in proposing the names of the CEC and Election Commissioners should be transparent where special attention should be given in choosing the Chief Election Commissioner. All actions of the Selection Committee in the process of selecting the Chief Election Commissioner and the Election Commissioners should be recorded and available to the stakeholders.

6. The Search Committee will finalize after due consultations with all the stakeholders, a list of two names for the post of the CEC and 8 names for the 4 posts of the Election Commissioners. These names will be placed before the Hon’ble President who may, should he deem necessary ask the Selection Commission to reconsider the names or particular names. If he is satisfied with the list, he would then send the names of the Prime Minister who would make the final choice of the new CEC and the four new ECs.

7. The Chief Election Commissioner: The Selection Committee should be given, prior to entering into the task of choosing the CEC, clear guidelines and knowledge about the type of individual and the qualifications the new CEC should possess. The Selection Committee must bear in mind that upon the new CEC, they would be imposing a historic responsibility for which he would if required be prepared to sacrifice everything in his possession to ensure that when the people go to vote, they would have nothing to fear and would be able to vote for any candidate or party they want.

8. The new CEC should be a retired civil servant from any of the two branches of the government, namely the executive and the judiciary. He could preferably be from the executive branch given the fact that a retired civil servant of the executive would have had experience in the administration at the local government/field levels where the main focus of the Election Commission would be to ensure credibility of the elections.

9. The intelligence organizations of the country these days have good information and knowledge about honesty, integrity, and political leanings or the lack of it in the civil servants in government and retired. The Selection Committee must have access to these information and knowledge in custody of the intelligence organizations so that they are able to set aside those suspect on any of the above in recommending the two names for the CEC's post to the Hon'ble President to ensure the neutrality of the new CEC.

10. The 8 Election Commissioners that the Selection Commission would recommend to the Hon’ble President could also be retired civil servants from the executive or the judicial branches of the government. In assuring their neutrality, the Selection Commission may find / seek necessary consultations with the intelligence services as in the case of the CEC so that only the names of neutral retired civil servants are recommended to the Hon’ble President.

11. In selecting the four Election Commissioners, consideration could be given to recommending names of at least one woman the new Election Commission. The Selection Commission may also consider a retired officer from the armed forces as one of the four Election Commissioners.

12. Given the fact that in the next national elections, foreign observers and foreign countries would have a natural and friendly interest, the Selection Committee may like to give consideration to selecting a retired senior career diplomat for one of the posts of the four Election Commissioners. The Selection Committee may even consider expanding the Election Commission to have five Election Commissioners instead of four. 

The successful selection of a neutral and capable Chief Election Commissioner and the four /five equally neutral and competent Election Commissioners through the Search Committee are steps of paramount importance for the country because without an independent and neutral Election Commission to hold the next national elections, the country would slide into greater uncertainty than at present and defeat all the progress that country has made in the last four and a half decades of its independence, particularly in the last eight years of the present government.

The establishment of a new Election Commission with the President taking the historic initiative at the request of the Prime Minister would undoubtedly establish the fact that the ruling party, as well as the opposition parties, have acknowledged that to save Bangladesh, the people's right to elect the government of their choice must be restored at any cost. Nevertheless, there are other important steps that would also be needed simultaneously to restore fully to the people their inherent, fundamental and constitutional right to elect the government of their choice. The following actions, certainly not an exhaustive list are recommended :

1. Empowering the new CEC and the new Election Commission: During the period of the national elections, all powers, and responsibilities related to the conduct of those elections must be placed upon the CEC and the Election Commission.

2. Key institutions that are critical to conducting the national elections like the district administration and local government must be placed under the EC in the context of their duties related to holding the elections.

3. The law enforcing agencies such as the Police, RAB and the military and paramilitary personnel who would be required to assist in the conduct of the elections must take their orders and answer to the CEC in the context of their election-related duties and functions.

4. The high degree of politicization of the civil administration and the law enforcing agencies in recent times would require the CEC and the Election Commission to have full powers to change the district and local level civil, police and RAB officials. In fact, a major obstacle to holding free and fair elections at national and local levels has been the role the civil, police and other law enforcing agencies have played in favour of the ruling party. 

5. The military could be called in for election-related duties if the CEC thought that would be necessary for holding a free and fair election. In her proposal, the BNP Chairperson has suggested that the military officers who would be on election duty should also be given magisterial powers. The proposal has been criticized in some quarters. Given the fact that, first, the Bangladesh military has won worldwide reputation as peacekeepers and in that capacity, has also had experience in assisting elections abroad, it would only be in fitness to their credibility that while on election duty in their own country, they would be trusted with similar responsibilities that their civilian counterpart from the BCS (Admn) cadre would exercise. Second, the degree of politicization that has been evident in the civil bureaucracy and to a lesser extent in the military, lends credence to the need for deployment of the armed forces for election related duties in aid of the Election Commission.

6. The role of the judiciary when the country would be in the election mode would be of critical significance. Simply referring cases such a violations of the election code or irregularities in the election process to the normal legal and judicial process without mechanisms for quick disposal cannot be expected to inspire confidence in the election process. Therefore, special tribunals to deal with election-related cases should be set up at the divisional headquarters. If necessary, for the period of national elections, the normal judicial process could be slowed down to depute judges and other officials of the judiciary to deal with the election-related cases.

The measures detailed and discussed in the preceding paragraphs are those that could help the country come out of its current political stalemate where the spirit of 1971 is being humiliated, conflicted and contradicted and the future of the country placed in extreme jeopardy. These measures would nevertheless be those for dealing with the present undesirable political situation and not sustainable over a longer period.

It is absolutely essential that the present Election Commission’s umbilical chord with the government must be severed to allow it to function independently for upholding the interests of the people. The restructured Election Commission should be made a truly independent body like the Parliament Secretariat. In empowering the restructured Election Commission, the Indian Election Commission could be the role model. It must be established without any ambiguity by the force of law that when the country is in election mode, the executive, particularly the law enforcing agencies and the local government and administrative functionaries, as well as the judiciary must extend any assistance the EC would seek from them in holding national and local government election.

If the President takes the critically needed initiative for appointing a Search Committee, it would be an answer to the prayers of the people of Bangladesh. If the political parties then proactively help one another and choose the next CEC and the ECs by consensus, then

the right of the people to choose their government would be restored and that would re-establish democracy in the country.

If these positive developments occur, the ruling party could then initiate measures for establishing a framework to institutionalize the democratic governance of the country. During the 1991-96 tenure of the BNP, the ruling party had thought that it could institutionalize democracy through the caretaker government that it demolished in 2012 after it found to its regret as stated earlier, that an unelected government could not elect an elected government. The step to abolish the CTG system now makes it incumbent upon it to give the country the alternative to institutionalizing sustainable democracy. A sound and reliable system of elections where people would be able to vote freely and fairly and a structure to ensure it could be the ruling party’s contribution not just to democracy in Bangladesh but also to ensure democracy in a developing country.

To achieve such an objective, the ruling party in consultation with the opposition political parties should engage in discussions and consultations to, first to find out the ways and means to strengthen the Election Commission. In such discussions, the stakeholders should inquire whether for a country that is the eighth largest in the world in terms of population, the present parliament of 300 direct members and the system of electing these members from 300 single constituencies could be amended and some form proportional representation could be introduced.

To help the restructured and empowered Election Commission to fulfill the historic role to be imposed upon it that could help reignite the spirit of 1971 in its truest form, the following measures would be necessary.

The present system of single constituencies no longer reflects the hopes and aspirations of the people. In fact, under this system, predominantly those with a business background are becoming members of the parliament. Many professional groups that the country badly needs to be in parliament are unable to become members of parliament under the present system.

Serious consideration should be given to elect a part of the parliament through proportional representation where seats would be allotted to the participating political parties in proportion to votes received. Under this system, the political parties would submit a list in the constituencies under proportional representation where voters would vote for the parties and not individual candidates allowing the political parties to submit names of individuals belonging to different professional groups without requiring them to win elections individually.

The system of proportional representation practiced in Japan’s Lower House could be used as the model for Bangladesh. In Japan Lower House of 480 seats, 180 are elected through proportional representation and the remaining 300 though single member constituencies.

Last but not least to institutionalize democracy through the process of periodic elections at the national and local government levels, the political parties must find out the ways to minimize the power of money in the election process. The important point in this context is intent and if the political parties express the intent of minimizing the power of money, there are examples galore from the process of elections worldwide that could be copied in Bangladesh.

Bangladesh is at a historical crossroad where democracy is hostage to politics that is the antithesis of why the country was liberated in 1971. There is practically little to no democratic space for the opposition. The fact that the present CEC and his colleagues would end their tenure has opened a window of opportunity for the people to regain their voting rights. The ball is now entirely in the court of the ruling party. The Prime Minister has shown great courage at critical times in the last 8 years. She had shown the wisdom to select the outgoing Election Commission by requesting the President to initiate a Search Committee. She had also offered to the opposition BNP a share in the election time government during the last national elections to ensure a free and fair election. The need for her once again to show the same courage and wisdom has enhanced many times more.

The nation is watching eagerly and anxiously at the Prime Minister on how she responds to the need for a powerful and independent Election Commission under a CEC and ECs who would be selected through an initiative of the President to ensure their neutrality and worthiness.

This meeting is organized in CIDRAP Auditorium