Appellate Division Cases
(Civil)
PARTIES
Jatiya Party ………………………Appellant
-VS-
Election Commission for Bangladesh and others …………………Respondents.
JUSTICE
Latifur Rahman CJ
Mahmudul Amin Choudhury J
Kazi Ebadul Hoque J
Mainur Reza Chowdhury J
JUDGEMENT DATE: 30th November 2000
The representation of the People’s Order, 1972. Article 20(1). 91 (b)
The conduct of Election Rule, 1972
118(1) of the Constitution of the People’s Republic of Bangladesh
Barnard and others Vs. National Dock Labour Board and another, 1953 (1) All England Law Reports 1113
Vine Vs. National Dock Labour Board, 1956 (3) All England Law Reports 939
Allingham and another Vs. Minister of Agriculture and Fisheries, 1948(1) All
England Law Reports 780
That the Acting Chief Election Commissioner had acted coram non judice in exercising his power in this particular case. The learned Judges of the High Court Division unnecessarily wrote a long judgment without touching on the vital issue raised in the present case before it ……………………….(15)
Since we are holding that the order of Acting Chief Election Commissioner is coram non judice it is needless for us to go into the question as to whether the action of the Acting Chief Election Commissioner was a quasi-judicial one or one in his administrative capacity ………………………..(16)
Civil Appeal No. 183 Of 2000 (From the Judgment and order dated 9.3.2000 passed by the High Court Division, Dhaka in Writ Petition No. 1153 of 2000)
Syed Ishtiaq Ahmed, Senior Advocate, (M/s. Amir-Ul-Islam and Rokanuddin Mahmud,
Senior Advocates with him), instructed by Sharifuddin Chaklader; Advocate-on-Record…………..For the Appellant
Rafique-Ul-Huq, Senior Advocate, instructed by Mvi. Md Wahidullah, Advocate-on-Record………………..Respondent No.6
Waliul Islam, Advocate-on-Record………………. Respondent No. 1-3
Respondent Nos. 4-5 ……………. Not represented.
Mahmudul Islam, Attorney General. ………………Amicus Curie
JUDGMENT
1. Latifur Rahman CJ: This appeal by the writpetitioner-appellant is against an order dated 9.3.2000 passed by a Division Bench of the High Court Division summarily rejecting Writ Petition No. 1153 of 2000.
2. Jatiya Party represented by its Secretary General Anwar Hossain Manju had impugned
an order dated 23.2.2000 passed by respondent No.2 awarding the symbol ‘Langol’ to
Jatiya Party faction headed by Mr. H.M. Ershad for all bye elections for the present
parliament referring to Article 20(1), 91(b) of the representation of the People’s Order, 1972 and Rule 9(1) of the conduct of Election Rule, 1972 being the existing legal provisions for allocation of symbols in the parliament election. The symbol ‘Langol” was reserved for Jatiya Party by the Election Commission. In Meherpur-1, bye-election one Motassim Billah, a candidate of Jatiya Party requested for allocation of symbol “Langol” and as there was no other candidate of Jatiya Party, the Returning Officer by order dated 19.4.99 refused to allocate the said symbol “Langol” to him and allocated the symbol “Butterfly” for the said bye-election a symbol reserved for independent candidate whereupon writ petition No. 1318 of 1999 was filed before the High Court Division and the Rule was made absolute on 23.4.99 directing the Returning Officer to allocate the symbol “Langol” as a candidate of Jatiya Party. In an appeal before the Appellate Division, the Appellate Division by a judgment dated 17.11.99 in Civil Appeal No. 44 of 1999 allowed the appeal setting aside the order of the High Court Division. Meanwhile Faridpur-4 bye-election was held on 27.10.99 wherein the two rival candidates from Jatiya Party were allocated the symbol of “Lotus” to the candidate of the appellant and “Langol” to the candidate of respondent no. 6 despite the fact that there was a letter before the Returning Officer from the appellant requesting allocation of symbol
“Langol” stating that he was a candidate of the appellant. The said candidate not having been allocated “Langol” as its symbol filed writ petition No. 3933 of 1999 which was summarily rejected holding the same to be the election dispute. Respondent No.5 on 4.11.99 filed an application before the Election Commission for reviewing the order of the Returning Officer allocating the symbol of “Full Pant” for Tangail-8 bye-election instead of “Langol.” The Chief Election Commissioner (Acting) by order dated
23.3.2000 more than 3 months after the Tangail-6 bye-election passed the impugned
order holding that respondent No.6 Hossain Mohammad Ershad is the leader of the Jatiya
Party in the Parliament headed by him and hence the symbol “Langol” is due to the party
headed by him and the order shall be followed in any bye-election in the present parliament.
3. The appellant further asserted that in the council meeting of Jatiya Party Mr. Mizanur
Rahman Chowdhury and Mr. Anwar Hossain Manju were re-elected as the Chirman and
General Secretary respectively which were attended by most of the members of the parliament belonging to Jatya Party. The appellant’s party existed on 12.6.96 when they were sitting Chairman and General Secretary respectively.
4. The appellant has further asserted that the candidate contesting the bye-election of
Tangail-8 earlier filed a review petition before the Election commission and the Election
Commission by order dated 31.10.99 held that there was no scope to review the order of the Returning Officer regarding the allocation of symbol “Langol”.
5. In this appeal, leave was granted to consider the submission of the learned Advocate for the writ-petitioner-appellant as to whether the High Court Division acted correctly in holding that acting Chief Election Commissioner is not coram non judice in exercising the powers which is vested in the Election Commission inasmuch as Article 118 of the
Constitution read with the provision of the said Order makes it clear that the power of the
Election Commission can only be exercised by it, and not by any of its members alone.
Leave was also granted to consider the submission of the learned Advocate as to whether
the High Court Division was correct in holding that the Election Commission was not acting judicially and it was not a quasi judicial body, and it was acting in its administrative capacity.
6. The Election Commission has been established under Article 118(1) of the Constitution of the People’s Republic of Bangladesh which reads as follows: 118. (1) There shall be an Election Commission for Bangladesh consisting of a Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time direct, and the appointment of the Chief Election Commissioner and other Election Commissioners (if any) shall, subject to the provisions of any law made in that behalf, be made by the President.
7. Thus it appears that the Election Commission is a body which shall consists of a Chief Election Commissioner along with other Election Commissioners as may be appointed by the President and the Commission shall be subject to the provisions of any law made in that behalf by the President. Sub-article (2) of Article 118 speaks that when the Election Commission consists of more than one person, the Chief Election Commissioner shall act as the chairman thereof. This is about the establishment of Election Commission under the Constitution.
8. Syed Ishtiaq Ahmed draws our attention to articles 3 and 4 of the Representation of the
People Order, 1972 (President’s Order No. 115 of 1972). Article 3 reads as follows:
3. “The Election Commission, constitution in accordance with Article 118 of the
Constitution may be strengthened by appointing such number of Commissioners as may be deemed necessary.”
9. Article 4 reads as follows: 4. “The Commission may authorise its chairman or any of its members or any of its officers to exercise and perform all or any of its powers and functions under this Order.”
10. In the present case the order was passed by the acting Chief Election Commissioner alone and not by the Election Commission. The moot question is whether a member who was acting as Chief Election Commissioner can perform all or any of its power and functions under the representation of the People Order, 1972, briefly, the order, without there being any authorization by the Commission itself. It has been referred earlier that the Election Commission is constituted under Article 118(1) of the Constitution and it consists of a Chief Election Commissioner and such other Election Commissioners as may be appointed by the President and they in fact constitute the Election Commission for Bangladesh. In that sense, Election Commission is a composite body, an individual member can only act under section 4 of the Order when he is authorised by the Commission itself. In this particular case as a matter of fact there is no delegation/
authorization by the Commission itself. What we find is that the Chief Election
Commissioner being unwell he went on leave for treatment abroad and he verbally nominated a member to act as Acting Chief Election Commissioner. As a matter of fact this may be at best said to be a direction of the Chief Election Commissioner to perform functions of the office in his absence as Acting Chief Election Commissioner, but for exercising and performing any powers or functions under this Order he must get authorisation from the Commission itself, otherwise his action under the Order will be coram non judice and without jurisdiction. As a matter of fact the functions that the Acting Chief Election Commissioner was doing in this particular case, was a functions vested in him under this Order.
11. In the present case the controversy was with regard to allocation of symbol which the
Returning Officer was authorised to do under article 20(1) of the Order and that order was challenged before the Election Commission and the Election Commission of Bangladesh has got the power of review under article 91(b) of the Order. Thus the Election Commission has got the authority to decide the matter. Without entering into the question as to whether the authority exercised by the Acting Chief Election Commission is a quasi judicial order or an order in its administrative capacity, it can be safely said that there was no delegation by the Election Commission itself to perform such function under the Order.
12. Mr. Rafique-Ul-Huq, learned Advocate appearing for respondents has placed before
us Article 3A of the Order which reads as follows: 3A. Subject to the provisions of this Order, the Commission shall regulate its own procedure.
13. Mr. Rafque-Ul-Huq wants to argue that the Commission has the authority to regulate
its own procedure. To that argument, Syed Ishiaq Ahmed submits that for regulating its
procedure the Commission must act subject to the provision of this Order. In other words, he wants to argue that section 3A is subject to section 4 of the Order which speaks of authorisation of power by the Commission itself to its Chairman or to any of its members to carry on the functions under this Order. Syed Ishtiaq Ahmed also cited some decisions from where he wanted to argue the principle of cor-ram non judice. He cited three decisions for our consideration. 1. In the case of Barnard and others Vs. National Dock Labour Board and another, 1953 (1) All England Law Reports 1113, it was held that the power of suspension of a worker of the local Dock Board for any disciplianary function was given to the Local Dock Board, the local Board had no authority to delegate that power to the Port Manager and therefore the suspension by the Port Manager was a nullity. 2. In the case of Vine Vs. National Dock Labour Board, 1956 (3) All England Law Reports 939, the dismissal order of the plaintiff was set aside as the local board had no authority to delegate its disciplinary functions. 3. In the case of Allingham and another Vs. Minister of Agriculture and Fisheries, 1948 (a) All England Law Reports 780, Lord
Goddard, Chief Justice applied the principle in delegatus non potest delegare, and held that where the War Agricultural Executive Committee is to serve a notice to the appellants and they delegated their powers to the executive officer, wherein it was held that the executive committee was not given any power to delegate this authority to the executive officer and the executive committee must make its decision, they cannot delegate their power to some other person or body, namely the executive officer.
14. Syed Ishtiaq Ahmed also cited the decision of Jamal Shah, 18 DLR (SC) 1 from
where he also argued that the delegation must be given by the Commission itself not by the Chief Election Commissioner as has been done in the present case.
15. Thus on a careful consideration of the law on the subject we are of the view that the
Acting Chief Election Commissioner had acted coram non judice in exercising his power in this particular case. The learned Judges of the High Court Division unnecessarily wrote a long judgment without touching on the vital issue raised in the present case before it.
16. Since we are holding that the order of Acting Chief Election Commissioner is coram
non judice it is needless for us to go into the question as to whether the action of the Acting Chief Election Commissioner was a quasi-judicial one or one in his administrative
capacity.
17. For the foregoing reasons, the judgment of the High Court Division is set aside and the appeal is allowed without any order as to costs.
Ed.
Source: IV ADC (2007), 385