Ensuring EC's operational independence
It seems that the speculation about the High Court's interim order that stalled the Dhaka City Corporation (North) mayoral by-election to fill up the post left vacant with the death of popular mayor Annisul Huq for six months came true (The Daily Star, January 24), though initially it was reported to be three months only. The ad interim order given on hearing of two writs by the High Court also came as a surprise to many Dhaka (North) dwellers.
There was increasing scepticism whether the ruling party would take the risk of holding election in the capital's north city corporation ten months before the 11th National Assembly election, likely to be held at the end of this year. The scepticism grew stronger after the Rangpur City Corporation election, where the ruling party candidate lost almost 46 percent of votes from the last poll. Whether the Rangpur election was any indication of the descending popularity of the ruling party remains debatable.
However, amidst all these speculations, the Election Commission (EC) announced the election schedule for the mayoral by-election and the newly created Ward-18 for both the north and south city corporations. And a schedule was announced within the time frame allowed under the law for such elections. Accordingly, the last day for the submission of nomination was January 18 and polling day was fixed as February 26. The declaration by the EC, however, could not completely pacify all, but it did give hope of initiating electoral activity at the beginning of the year, which may culminate with the 11th Parliamentary Election. Voters hoped to vote in a mayor who would complete the good work initiated by the last mayor.
Yet there were concerns that the election to this very important local body may be thwarted by some sort of a litigation. Eventually that proved to be true. Two separate writs from two sitting union council chairmen were admitted to the High Court. The question that remains most ambiguous is whether the court had given enough time to the EC for the hearing in accordance with the provision of Article 125 (c) of the Constitution. Apparently, it seems, as reported in various media, the EC was not served with any notice nor had they had any communication with their attorney. It definitely raises question whether Article 125 (c) had been enforced either by the learned High Court or by the EC as the spokesman of the EC said that they did not receive any notice (Prothom Alo, January 22).
Nevertheless, the issues that were brought before the court could have been resolved within a day or two. The main objection that the plaintiff was not supplying electoral roll in CDs as, according to the EC, new voters would be added to the existing list on January 30, whereas, as reported, CDs were supplied to all those who had collected the nomination form. Moreover, any adult qualified by age to be a candidate, for one reason or another, not listed in the voter roll, could be included any time at the discretion of the election commission under the provision of Section 15 of the Electoral Rolls Act, 2009. Whether such attempt was taken by any such potential candidate or not, is not known. Another issue was the tenure of new ward commissioners that could also have been solved, had that question been raised.
From brief discussions, it appears that all these small issues could have been resolved, and can still be resolved in the shortest possible time, both by the concerned ministry and the EC, but no such attempts seem to have been taken so far (January 25).
The stay order by the court has raised a few questions on the definition of the independence of the election commission regarding its capacity to implement the decision to conduct election. This was least expected as Article 125 (c), to a great extent, protected the independent function of the election commission in the conduct of election which was of vital interest to the people. It is the solemn duty of the election commission to protect the right of voters to exercise their fundamental right to vote through an uninterrupted electoral process. This principle is well established, and in many countries, electoral legal framework or the apex court bars any court from hearing any writ until the electoral process, for which a schedule had been declared, is over. An example could be drawn from the landmark case of (India) Ponnuswami v Returning Officer, Namakkal (AIR 1952 SC 24) and the verdict of the Supreme Court of India, which completely barred any court from allowing any writ once the election schedule has been declared till the electoral process is over. The verdict of 1952 had been validated by other courts in 1978, 1996, 1998, 2000 and 2007.
In the above context, the Bangladesh Supreme Court Appellate division, drawing inference from the Indian Supreme Court, had given a similar verdict in 1989 (Prothom Alo, January 22), yet there have been numerous instances where elections were stayed particularly of local body, and on others where the court concurred with the decision of the Election Commission on candidatures validity in a number of elections.
Such orders had put the EC in serious administrative problems. A case in point is the problem faced by the EC when it had to accommodate candidates by reprinting ballots for 17 constituencies a week before polling date in the 9th Parliamentary Election of 2008. Approximately 280,000 ballot papers had to be burned and reprinted (Nirbachon Commission e Panch Bochor, M Sakhawat Hussain).
Nevertheless, as narrated from past experiences, an amendment was sought which resulted, if not similar to India, an insertion into Article 125 (c) of the Constitution, where a definitive provision of the hearing was provisioned. It seems now that EC is yet to take full view of this protective provision. Since then the EC has claimed that no notice was served and that not enough time was provided for an argument in their favour. Therefore, the EC must exercise its constitutional right to appeal and try vacating the stay order. Unless the EC takes the legal steps available to it, there would be growing distrust of this institution, of their operational and independent decision-making capacity and their implementations. Inaction would entail doubts about their efficiency in the months ahead, when the EC has to conduct a few more important local body elections leading to up to the 11th National Election.
From this and past experiences, it is evident that in most cases, the ECs operational independence has frequently been interrupted on legal grounds and in most cases, writ made on mala fide intentions. To reduce such disruption, it is advisable that the existing Article 124 (c) of the Constitution be revised and the court be barred from hearing any writ during an electoral process till the process is over. Such provision would also make the EC more cautious and answerable to the court and voters.
M Sakhawat Hussain is former election commissioner and a columnist.
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