Law Opinion
CEC exposed to removal for gross misconduct
M. Moazzam Husain
The just-ended BNP-Jamat regime has left a legacy of wholesale politicization of all the state machineries as well as the educational institutions like the universities, colleges and constitutional bodies like the Election Commission and the Public Service Commission. The Supreme Court itself could not escape the tentacle of vicious and desperate politicization.
Appointments, promotions posting etc. in public offices and constitutional posts made exclusively on partisan consideration assumed such an epidemic scale that it looked like as if the regime was deliberately working on a hidden agenda of cleansing the people said to have mental leaning to opposition political parties primarily with a view to gaining advantage in the ensuing election.
CEC and the Supreme Court
Along the line came the appointments of the present Chief Election Commissioner (CEC) Justice MA Aziz and other three Election Commissioners. Appointment of Justice Aziz as the CEC, in particular, was protested by the then opposition political parties as one given absolutely in partisan consideration and no free, fair and impartial election under him was possible. The murmur of skepticism could have settled one day had the CEC demonstrated his guards, transparency and fair play in action. Having assumed his office unaccepted by the then opposition political parties he might have directed himself on a path that resolved the speculations besetting him and inspired confidence in the people. He, instead, stoutly took up preparation of a fresh voters' list in disregard of the existing list which, as claimed by the opposition political parties, was done at the behest of the then BNP-Jamat alliance government.
The decision was challenged before the High Court Division substantially on the ground that there is no scope in law for preparation of fresh voters' list. What it could do was upgradation on the basis of the existing list. High Court Division having heard the petition allowed it with direction to the Election Commission, amongst others, to upgrade the list instead of making a fresh list. The CEC chose to ignore the directives issued by the High Court Division and decided to prefer appeal against the order of the High Court Division which was reportedly attended with dissention by two other Election Commissioners since retired. Government immediately responded by appointing two new Election Commissioners with an apparent intention to supply aides to the CEC. Finally the appeal that was filed by the Election Commission became counterproductive. The Appellate Division took notice of the inefficiency of the CEC.
It is only when the Supreme Court has interfered the CEC reverted back to upgradation campaign. But by the time he was brought back on compliance of the High Court's order Election Commission had spent around sixty crores Taka in preparation of fresh voter's list a question witch still remains unanswered.
Credibility crisis
The CEC came under fire not as much for his supposed partisan leaning as for inefficiency to hold the high post of the CEC. He by his series of acts, comments and gestures lapsed into controversy and virtually relegated himself from the sublime to the ridiculous. Not to speak of the 14-party alliance which demanded removal of the CEC by now there are hardly any people in Bangladesh, except politically motivated persons, who believe that there can be any fair, free and impartial election under him and two other Election Commissioners now in place. This credibility crisis has recently been further worsened by the open stand taken by BNP and Jamat alliance in favour of the present Election Commission who are out to defend the CEC on constitutional excuses.
With that backdrop of facts press persons fondly look for the interview of the CEC and whenever they can avail one ask a question in common: 'Mr. CEC, what is your reaction about the widespread demand of your resignation?.' He always tries to bypass or if stuck pointedly says as he always does: 'This is a constitutional post. I have a constitutional duty to hold an election. People of Bangladesh want election and there shall be an election'
Express refusal to resign
To our utter dismay, the Chief Election Commissioner finally has declined to resign his office in express words on the 5th instant. The refusal of the Chief Election Commissioner to stand down, apart from worsening the crisis, has touched off many speculations. At least now it seems amply clear that his mission and the mission of BNP-Jamat are closely tuned together. He as well as the BNP-Jamat alliance has turned a blind eye to the popular sentiment and concern and the concern of the foreign delegates about practicability of holding a free and fair election under the present Election Commission.
Constitutional protection
The constitutional mechanisms are designed to materialize its fundamental principles for the people not to protect the post of an individual or individuals against the interest of the people. By the same token the constitutional protection of the services of the CEC and other Commissioners is also designed to defend the independence and impartiality of the Election Commission as against the executive government not against the people in their pledge to ensure free, fair and impartial election. It is a paradox in constitutionalism to say that the constitutional post of a particular individual irrespective of popular confidence enjoyed by him is sought to be protected by the constitution. The main indicator of bona fide of a person in a constitutional post either removable or not removable by ordinary procedure is to see whether he can carry out the purpose of the chair. The protection provided in the constitution is not to facilitate sticking to the chair but to keep it free from the influence of the executive government so that the person holding it can freely and independently serve the public purpose of the same. It is the most legitimate expectation attached to such a chair that if a person finds himself incapable of doing justice to the it or his continuation in the chair tends to frustrate its purpose he must resign.
But if any such person does not resign of his own, as in case of our CEC, and takes shelter of the constitutional protection what is left for the people and the President to do about him ? How to get rid of him? Question of people apart, we must find out a constitutional means to meet such an awkward and strange situation.
Lying on oath and misconduct
Article 96(6) of the constitution says, amongst others, that if the Supreme Judicial Council reports to the President that in its opinion the judge (here the CEC) has been guilty of gross misconduct the President shall by order remove the judge from office. 'Misconduct' is defined in law as 'any act unbecoming of a gentleman' or for the purpose of public servant, unbecoming for him. The question of misconduct attached to the chair of the CEC must be much more sensitive as that affects the intention of the constitution for that matter the public interest more directly.
The CEC is found to deny the fact that the Military Secretary of the President and an Adviser of the Caretaker government met him and communicated to him the desire of the government that he should resign his office. The flat denial by the CEC was telecast and published in many newspapers. Adviser Hasan Mashhud Chowdhury, emphatically said that he and the Military Secretary of the President met the CEC and communicated to him the desire of the government as above. The CEC was confronted with the same question the following day by reference to the statement of Mr. Chowdhury. This time he said he would not say anything about it. In view of the peculiar circumstances and meeting in the government level on this behalf people have every reason to believe that the CEC did not tell the truth. This being a public statement from a person holding a constitutional post it may safely be construed as deceiving the people in violation of his oath of office and thus amounted to gross misconduct on his part. Loosely, it may be seen as 'lying on oath' contributing the misconduct.
The second and the most significant tire of the misconduct of the CEC seems to me to attributable to his marked tendency to stick to his office knowing it well that in view of the political situation of the country, no election under him is going to achieve minimum of national or international credibility much less the credibility of a free, fair, impartial and peaceful election as contemplated by the constitution. A fact which by itself should be enough to hold a person of the kind of the CEC guilty of gross misconduct.
Concluding remarks
Situation is tense. The whole nation is sliding back into uncertainty. Much more than the chair of the CEC is at stake. I have no reasons to believe that a man no less than Justice MA Aziz will find any constitutional sense whatsoever to continue with his post. But with the changing trend of values it is more likely than not that the nation may face such constitutional impasse in future. This is time for serious reflections. We cannot afford to sit idle. There must of necessity be a constitutional device to resolve such a breathless situation for our own interest.
The author is senior advocate of Supreme Court, Banlgadesh.
