The decision of the election commissioners, and the assumption of the office by Commissioner Mahfuz, are not only wrong but also unconstitutional. A careful look at the constitutional provisions relating to the Election Commission shows how flawed the process followed by the election commissioners has been.

• The Election Commission consists of the chief election commissioner and "such number of other election commissioners, if any, as the president may from time to time direct." [Article 118(1)]
• "When the Election Commission consists of more than one person, the chief election commissioner acts as the chairman of the Commission." [Article 18(2)]
• Election to a vacant seat of Parliament must be filled within ninety days after the vacancy occurs. However, if the election cannot be held within ninety days, for an act of God, the chief election commissioner may postpone it for not more than ninety days following the initial ninety days period. [123 (3)]
• The general election to Parliament must be held within ninety days after dissolution of the previous Parliament. [123 (4)]

The Constitution is unambiguous on two points. First, there is no provision for an acting chief election commissioner. Second, the power of the CEC, as distinguished from that of the Election Commission, is limited to chairing meetings of the commission and postponing by-elections for a limited period. The general election cannot be postponed.

Since there is no provision for acting chief election commissioner, the president cannot appoint anyone to that office and connive with, or support, anyone declaring himself acting chief election commissioner. Commissioner Mahfuz's self-appointment, with the support of the other election commissioners, is contrary to the Constitution. Their conduct is unconscionable. The president cannot indulge their misdemeanor, ex-ante or ex-poste, without implicating himself in the unconstitutional act.

The Representation of the People Order, 1972, gives the Election Commission limited jurisdiction to regulate its procedures and distribute its power and functions among the commissioners and the officers.

• The Commission can regulate its own procedures, subject to the above Order. [Section 3A].
• The Commission can authorize its chairman, its members, or its officers to exercise and perform all or any of its powers and functions under the above Order. [Section 4].

The Order does not define chairman and members. It is presumed that chairman refers to the election commissioner who presides over the meetings of the Commission -- and the Constitution specifies this to be the chief election commissioner. Further, "members" refers to election commissioners. These are the only sensible interpretations of the two terms, which are consistent with the Constitution.

The procedural regulation of the commission is not publicly available, most probably the commission has not prepared and notified the regulation. Leaving aside hair-splitting legal arguments, the power to choose a commissioner to chair a meeting occasionally needs to be conceded to the commission; without this administrative flexibility, the commission cannot function. However, the commission cannot make anyone acting chief election commissioner in the absence of a constitutional provision in this regard. The election commissioners have acted beyond their jurisdiction, for which they deserve punishment, including removal from office.

Further, a commissioner may chair a meeting on an ad-hoc basis; it is doubtful if a regular arrangement for proxy can be legitimately made for an absentee chief election commissioner when the period of his absence is relatively long and indefinite. It makes a mockery of the Constitution if the Election Commission can hold a general election while the chief election commissioner remains on "forced leave."

CEC Aziz went on leave because he was found unworthy of public trust, and incapable of delivering a credible fair election. The circumstances which led to his forced leave also apply to Commissioners Mahfuz and Zakaria. When Aziz started preparation of a fresh voter's list from scratch, the two experienced commissioners (since retired) objected. Commissioners Mahfuz and Zakaria were brought in to bolster support for CEC Aziz. The decision of the High Court, and that of the Appellate Division which upheld the High Court ruling, prove that Aziz was wrong. Commissioners Mahfuz and Zakaria share the liability for the flawed voter's list, and should go the way of CEC Aziz.

Commissioner Mahfuz has declared that he would not accept, or serve under, anyone from the executive service. He argues that the Supreme Court judges have a higher position in the warrant of precedence than the highest executive officers -- like the cabinet secretary and defence services chiefs. It is unpersuasive: the warrant of precedence does not apply once you retire. Besides, as election commissioner, he has a position in the warrant; he can, at best, insist that his position should not be lowered -- or decide to quit if his sense of honour or self-importance is hurt by appointment of new commissioners or chief election commissioner. In any case, he cannot dictate and limit the options of the government and the president. The government and the president can give indulgence to his vanity only by demonstrating their impotence. The president will most probably bend, for Dr Iajuddin and Commissioner Mahfuz worship the same benefactor guardian angel.

The continuation of Mahfuz, with more power, and Zakaria aborts reconstitution of the Election Commission and will impede reforms which can improve the fairness and credibility of the election. Commissioner Mahfuz has already given enough indications to that effect. No attempt will be made for systematic rectification of the voter's list; specific complaints will be addressed, however.

The extent of error is some 16% of the voters enrolled (11% excess registration plus 5% left out), only a fraction of which can be de-registered or registered in this way. There is no initiative to remove from election related duties the thana election officers who were members of BNP-Jamat cadres. However, disciplinary action will be taken if specific complaints of misconduct are brought against anyone. The commission fails to see the distinction between a flawed electoral roll and recruitment (in Durkheim's sense), and individual/particular criminal conduct.

Most disconcerting is that the election schedule has been announced while Commissioner Mahfuz rules over the Election Commission. Once the schedule is declared, all administrative changes come under the control of the Election Commission. The efforts of the caretaker government, and the advisers, to neutralize the administration will become irrelevant and ineffective. The country will go to election with a rigged voter's list, suborned administration, and an Election Commission whose decisions lack legitimacy, and do not comply with the Constitution. That will worsen the crisis.

The president has claimed absolute authority for reconstitution of the Election Commission, including the number of commissioners and their appointment. He has ignored the report of the four advisers who had consulted the political parties. The information adviser admitted to the journalists that appointment of an election commissioner is absolutely within the competence of the president. They are wrong -- and most probably violate the Constitution in yielding to the claim made by the president.

The caretaker government comprises of the council of advisers headed by the chief adviser. The council is accountable to the president and acts as a collegial body. All executive powers are exercised on the authority of, or on behalf of, the chief adviser, and in the name of the president. The chief adviser derives whatever authority he has from the council of advisers -- i.e. caretaker government [Article 58B (2-3)].

The president is not part of the caretaker government and, therefore, cannot legitimately exercise any power over the council of advisers. The president has to act on the advice of the chief adviser, like he acts on the advice of the prime minister. Any action of the president as regards the Election Commission not based on, or contrary to, the advice of the council of advisers is liable to be illegitimate.

Only in two respects has the president been given (or appears to have been given) powers independent of the caretaker government: (i) promulgation of emergency without prior counter-signature of the prime minister remains ineffective; (ii) administration by himself of the laws related to the defence services qua Supreme Commander. On all other matters, the president is as titular as he is during the time an elected government is in office.

Dr Iajuddin is both chief adviser and president. It is difficult -- if not impossible -- for one person to exercise powers, and to enforce accountability for exercise of those powers. Dr Iajuddin is doing both at most critical time. His head remains too much muddied to maintain the distinction and remain correct. That, unfortunately, pushes our democracy into greater crisis.

Masihur Rahman, Ph. D. is a retired Secretary and freelance contributor on governance and policy issues.