Law 241, Lecture 16

The Election Commission of Bangladesh: A discussion
from Constitutional perspective
Department of Law
Premier University
Course Title: Constitutional Law of Bangladesh-I
Course code: (Law 241)
Course Teacher: Mahbuba Sultana
_
• Formation of the Election Commission:
The Constitution of Bangladesh provides for the establishment of an election commission, consisting of the Chief Election
Commissioner(CEC) and not more than four Election Commissioners(EC). Even the Election Commission can be formed only with the
CEC according to the meaning of ‘..other Election Commissioner (if any). The CEC shall be the chairman of the Commission. [art.118(1)
(2)].
• Appointment of the CEC and other Election Commissioners (EC):
The appointment of the CEC and other Election Commissioners shall be made by the President subject to the provisions of any law made
in that behalf [art.118(1)].
Unfortunately no such rules have been drafted yet for this purpose.
Formation of the Election Commission:
The Chief Election Commissioner and other Election Commissioners Appointment Act, 2022.
………continued
• Search Committee for Appointment of CEC & EC:
According to the law, the President will form a six-member search committee to recommend names of qualified candidates to be appointed
as the chief election commissioner (CEC) and other election commissioner (ECs).
The search committee will include a judge from-
• The Appellate Division nominated by the Chief Justice,
• Another judge from the High Court Division nominated by the Chief Justice,
• The Auditor General and Controller of Bangladesh,
• The Chairman of the Bangladesh Public Service Commission, and
• Two prominent citizens nominated by the President, one of whom will be a woman.
• Appellate Division judge will act as the head of the search committee, which is tasked to submit its recommendations to the President
within 15 working days of the committee's formation.
• The quorum of the committee will be formed with the presence of minimum three members of the committee while decisions will be
taken as per votes of the majority members.
• In the recommendation, the search committee will propose two names against each vacant post considering the qualifications mentioned
in the law for appointing the CEC and ECs.
………continued
Qualifications of CEC and Ecs: The Act said that the people whose names will be proposed for the CEC and ECs must be Bangladeshi
citizens, must be at least 50 years old and must have at least 20 years of work experience in any important government, judicial, semi-
government, private, or autonomous position or profession.
Disqualifications of CEC and Ecs: Any person will be disqualified for the CEC and EC posts if:
1. S/he is declared mentally imbalanced by any appropriate court;
2. S/he does not get rid of liability after being declared bankrupt;
3. S/he acquires citizenship of another country; or expresses or acknowledges loyalty to other foreign countries;
4. S/he is found guilty and sentenced for moral turpitude;
5. S/he is convicted under the International Crimes (Tribunals) Act, 1973 (Act No. XIX of 1973) or the Bangladesh Collaborators (Special
Tribunals) Order, 1972 (President's Order No. 8 of 1972) for any offence;
6. Or S/he holds any profitable post of the government except those for which the post holder is not declared disqualified by the law.
…………continued
• Tenure of the CEC and Election commissioners:

The term of office of an election commissioner is five years from the date on which she or he assumes office [art.118(3)].
• Election Commissioners’ Eligibility to Serve the Republic:
A person who has aheld office as Chief Election Commissioner shall not be eligible for appointment in the service of the Republic.
Any other Election commissioner shall, on ceasing to hold office as such, be eligible for appointment as CEC but shall not be
eligible for appointment in the service of the Republic [art.118(3)].
• Removal and Resignation of Election Commissioners:
Election commissioners can be removed following the process specified for the removal of Supreme Court judges in art.96
[art.118(5)]. An election commissioner may resign her or his office with a letter addressed to the president [art.118(6)].
• Functions of BEC under the Constitution:

• According to article 119, BEC has do to the following:
a) Holding presidential elections; b) Holding parliamentary elections;
• c) Delimiting the constituencies for parliamentary elections;
• d) Preparing electoral rolls for presidential and parliamentary elections;
• e) Other functions as may be prescribed by the Constitution or by any other law.
• Article 66(4) empowers BEC to take decision whether the seat of a MP becomes vacant due to the violation of art.66(2) &
art.70(case ref: Khandaker Delwar Hossain v. The Speaker 51 DLR).
• Functions under Representation of People Order(RPO), 1972:
a) Prepare electoral code of conduct,; fix the date of nomination papers, scrutinizing and withdrawal of nomination paper and
date of poll;
b) Decide Electoral disputes.
Power of the BEC in settling Electoral disputes:
• Pre-polling disputes: This type of disputes basically arise when nomination of any candidate is rejected or allocation of party
symbol etc. In such case the aggrieved candidate can make an appeal to the concern Returning Officer and if s/he is not satisfied
by the decision of the Returning Officer then can seek remedy to the HCD.
• Moreover art. 91A of RPO says that the Commission shall establish ‘Electoral Enquiry Committee’ to ensure the prevention
and control of pre-poll irregularities which shall consist of such number of persons as may be determined by the Commission
from amongst the Judicial Officers.
The Committee shall, on the basis of information received by it, or complaints made to it, or Suo moto, inquire into any matter or
situation which may constitute an offence or any pre-poll irregularity. After receiving recommendation from the Enquiry
Committee, the EC may issue necessary order or instruction to the concerned person, or registered political party to implement the
recommendation.
Post-polling disputed: According to RPO to settle election disputes which may include using undue influence, coercion,
manipulating election result etc. the Election Commission may form required number of Election Tribunal(ET). The Election
tribunal consists of a person who is or has been a District and Session Judge or an Additional District and Session Judge. Such
Election Tribunal has the powers of a civil court. An appeal may lie to the HCD against decision of ET.
U/A 49(2) of RPO, every dispute relating to election shall be presented to the High Court Division by an election petition within
prescribed time.
Art.57 of RPO also provides that every election petition shall be tried, as nearly as may be, in accordance with the procedure for
the trial of suits under the Code of Civil Procedure 1908.
References: 1. The Constitution of Bangladesh (art:118 to 126); 2. M. Jashim Ali Chowdhury, An Introduction to the
Constitutional Law of Bangladesh (Chapter :32).

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The Election Commission of Bangladesh: A discussion

from Constitutional perspective

1. S/he is declared mentally imbalanced by any appropriate court;

4. S/he is found guilty and sentenced for moral turpitude;

• Tenure of the CEC and Election commissioners:

• Functions of BEC under the Constitution:

Power of the BEC in settling Electoral disputes:

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