Case No: Civil Petition for Leave to Appeal No. 586 of 2000
Judge: Mahmudul Amin Choudhury,
Court: Appellate Division ,,
Advocate: Dr. Kamal Hossain,Mr. Mahmudul Islam,,
Citation: 54 DLR (AD) (2002) 64
Case Year: 2002
Appellant: Bangabir Kader Siddiqui
Respondent: Government of Bangladesh
Subject: Election Matter,
Delivery Date: 2000-12-4
Mahmudul Amin Chowdhury J
Kazi Ebadul Hoque J
Mainur Reza Chowdhury J
Bangabir Kader Siddiqui, Bir Uttam
Government Bangladesh represented by the Secretary Ministry of Law & others
December 4, 2000.
The Constitution of Bangladesh, 1972
The Representation of the People Order, 1972
The petitioner who fought the by-election cannot have any choice in the persons who are to act as members of the committee. The Election Commission accepted the formation of the committee which was formed with the approval of the Supreme Court the petitioner has no cause to be apprehensive on the formation of the committee ……… (7)
Dr. Kamal Hossain, Senior Advocate instructed Sharifuddin Chaklader Advocate-on-Record—For Petitioner
Mahmudul Islam, Attorney-General instructed by Sufia Khatun, Advocate-on-Record—For Respondents.
Civil Petition for Leave to Appeal No. 586 of 2000.
(From judgment and order dated 22-2-2000 passed by a Division Bench of the High Court Division in Writ Petition No. 4566 of 1999).
Mahmudul Amin Choudhury J.
1. This petitions fro leave to appeal is against judgment and order dated 22-2-2000 passed by a Division Bench of the High Court Division in Writ Petition No. 4566 of 1999 discharging the Rule issued earlier.
2. The short fact leading to this petition is that the petitioner was earlier elected a Member of the Parliament on the ticket of Bangladesh Awami League from the constituency No.140 Tangail 8, Shakhipur Bashail and due to difference of opinion with the party high command he resigned from Bangladesh Awami League and in the by-election held on 15-11-1999 he contested the same with symbol ‘Piri’ and the Awami League candidate with symbol ‘Boat’. It is the case of the petitioner that the party in power took this election as a prestige issue and has caused pressure upon the public servants to influence the result of the by-election in favour of their own candidate. The Prime Minister and other Ministers and high officials visited the area after pronouncement of the election schedule and promised the establishment of pourashava and the amendment of the Atiya Forest Ordinance, 1992 apparently to induce the voters. Political adviser of the Prime Minister and members of the parliament belonging to the ruling party and the Government servants in breach of Article 86 of Presidents Order 155 of 1972 took up their residence in the constituency 15 days prior to the holding of by- election and manifestly misused their official position to influence the result of the election in flagrant violation of the provision of law. Due to the influence of the ruling party people by-election could not be held peacefully which have been reported in national dailies on 15-11-1999. There were widespread violation, assault on a good number of voters some of whom received bullet injuries and the election was held in gross violation of election law and rules at the behest of the officials responsible for conducting the election compelling the petitioner to lodge complaint with respondent No.2 Chief Election Commissioner seeking cancellation of the election detailing various illegal interferences. Consequently, the Election Commission in accordance with the provision of Article 91A of the Representation of the People Order 1972 constituted an electoral committee comprising two judicial officers namely, Mr. Shahidullah Bakaul. Subordinate Judge, Tangail and Mr Reza, Senior Assistant Judge, Tangail to inquire into the matter. Thereafter the Election Commission in view of the seriousness of the allegation and in view of the allegation of rigging and other irregularities formed a committee comprising of four members namely Mr AR Masud, Additional District judge, Tangail, Mr Shahidullah Bakaul, Subordinate Judge, Tangail, Mr Reza Au, Senior Assistant Judge, Tangail and Mr Md Zakaria, Deputy Secretary, Election Commission to act as member-secretary of the committee. This decision was announced on 17-11-1999. The proposal was sent to the Ministry of Law, Justice and Parliamentary Affairs on the said date for necessary action after consultation with the Supreme Court of Bangladesh as required under Article 116 of the Constitution but the Ministry of Law headed by a member of the ruling party did not forward the names of the judicial officers who were earlier named by the Election Commission but instead submitted a list of others by adopting the principle of pick and choose thereby interfering with the independent choice made by the Election Commission which was flashed in the national dailies. The Ministry of Law secured the approval of the Supreme Court in respect of respondent Nos.3 to 6 excluding the names of three other officers announced earlier by the Election Commission. It is the case of the petitioner that he subsequently received a FAX message informing him that the members of the inquiry committee composed of respondent Nos. 3-6 would leave Dhaka for Tangail on 28-11-1999 for holding inquiry into the matter and requested the petitioner to appear before the committee at 6:00 PM of that date. It is the case of the petitioner that this change was at the behest of the ruling party and the petitioner apprehended that approval has been managed by the ruling party and, as such, impartial inquiry cannot be expected. The petitioner thereafter preferred appeal to the Election Commission for taking effective action to protect the process of free and fair election by taking appropriate action in respect of unfair step taken by the ruling party in submitting a list of members of the inquiry committee to the Supreme Court by dropping the names suggested by the Election Commission but with no effect. Thereafter, the petitioner served a demand of justice notice which having not been heeded to moved the High Court Division and obtained the Rule in the aforesaid writ petition and also obtained an ad interim order restraining the respondent Nos. 3-5 from conducting any inquiry into the matter pending hearing of the Rule.
3. The Rule was contested by respondent No.1 denying the allegation made in the petition and their case is that, the allegations as to the illegality and irregularity in conducting the election are the subject matter of inquiry by the in committee. The provision of Article 9 1A of the Representation of the People Order 1972 has no manner of application in respect of any dispute other than pre poll irregularities and, as such, the Election Commission cannot insist in the appointment of judicial officers in the inquiry committee but in any view of the matter the judicial officers have been selected in consultation with the Supreme Court and there was no pick and choose policy undermining the independent choice by the Election Commission. It is also their case that on receipt of Election Commission Memo No. M-Nikom/Ayeen/Bibidh/ 421/99/2004 dated 17-11-1999 Ministry of Law found that Mr. Md. Abdur Rahman Masud has already been appointed Vacation Judge during Civil Court vacation and the approval was obtained in consultation with the Supreme Court of Bangladesh as required under Article 116 of the Constitution. Having regard to the availability of judicial officers the Election Commission was consulted over the formation of the committee to which they raised no objection and accordingly, the committee was formed.
4. The High Court Division after hearing the learned Advocate of both the sides by the impugned judgment dated 22-2-2000 discharged the Rule.
5. Dr Kamal Hossain, learned Advocate appearing on behalf of the petitioner submits that respondent No.1 has acted without lawful authority and in manifest violation of the provision of Articles 118 and 119 of the Constitution by changing arbitrarily the composition of the inquiry committee by excluding the names of the judicial officers designated and announced by the Election Commission on 16-11-1999 and respondent has interfered with the independent functioning of the Election Commission thereby giving rise to genuine apprehension regarding impartiality of the inquiry. He further submits that the High Court Division committed wrong in holding that the Election Commission cannot name any particular judicial officer to act as member of the committee which is in exclusive domain of the President to be exercised in consultation with the Supreme Court and that the Election Commission could ask the Ministry to propose names of judicial officers for selection by the Election Commission. It is submitted that the Election Commission being an independent constitutional body having powers under Article 91A of the Representation of the People Order 1972 to nominate the member of the inquiry committee in order to conduct the election justly and fairly and in accordance with the provision of the said order. It is submitted that respondent No.1 acted beyond jurisdiction in not accepting the names of the judicial officers suggested by the Election Commission to act as members of the committee and thereby curtailed the power of the Election Commission which is an independent constitutional body.
6. Mr Mahmudul Islam, learned Attorney General appearing on behalf of respondents on the other hand, submits that the Election Commission suggested the names of three officers to act as members of the inquiry committee formed under Article 91A of the aforesaid Order and the matter was placed before the Supreme Court by respondent No.1 along with the names of some other persons and the Supreme Court approved the names of three judicial officers to act as members of the committee and accordingly, notification was issued and no objection was raised from the Election Commission on the formation of the committee or the approval by the Supreme Court. He submits that the proposal of the Election Commission along with other proposal by the Ministry of Law was placed before the Supreme Court and on going through these proposals the Supreme Court approved a committee which was subsequently formed and there is nothing on record to show that power of the Election Commission has been curtailed or interfered with.
7. Here in the present case before us it appears that over a by-election the Election Commission under Article 91A of the Representation of the People Order 1972 formed a committee to inquire into certain allegations and they suggested names of three judicial officers and the matter was sent to the Ministry of Law, Justice and Parliamentary Affairs by letter dated 17-11-1999 Annexure-l to the petition for approval by the Ministry. The Ministry in their turn placed the matter before the Supreme Court as their consultation is required under the Constitution. The letter Annexure- 1 of the Election Commission along with letter dated 18-11-1999 of the Ministry of Law. Justice and Parliamentary Affairs along with their observation were placed before the Supreme Court and the Supreme. Court, it appears, approved the names of certain judicial officers to act as members of the committee. There is nothing on record to show that there was any high handedness or interference in the matter by the Ministry of Law. They have placed all the cards before the Supreme Court which accepted the nomination of three judicial officers. The Ministry of Law it appears placed certain difficulties in accepting the names of 3 judicial officers nominated by the Election Commission and instead they got approval of the Supreme Court in respect of other officers and it appears that this has been accepted by the Election Commission when no objection was raised in naming 3 other judicial officers. The submission made by Dr Kamal Hossain was that choosing the names of officers by the Ministry of Law in the formation of committee has undermined the independence of the Election Commission, but we fail to agree with this submission when it appears the letter of the Election Commission to the Ministry of Law which is Annexure- 1 to the petition along with suggestions of the Ministry was forwarded to the Supreme Court which approved the names of certain judicial officers and that has been accepted by the Election Commission. In such a situation we hold that no illegality and wrong has been committed and there is no interference in the functioning of the Election Commission. There is no dispute as to the authority of the Election Commission in the formation of a committee under Article 91A of the aforesaid Order. The dispute before us is only in respect of judicial officers who are to form the inquiry committee and it appears that the committee was formed in consultation with the Supreme Court though not accepting the suggestion of the Election Commission but subsequently, the committee was accepted by the Election Commission without any protest. In such a situation we hold that the High Court Division has committed no wrong or illegality in accepting the contention of the respondent. The petitioner who fought the by election cannot have any choice in the persons who are to act as members of the committee. It is in between the Election Commission and respondent No.1 and when the Election Commission accepted the formation of the committee which was formed with the approval of the Supreme Court the petitioner has no cause to be apprehensive on the formation of the committee. The High Court Division it appears thoroughly considered the case of the respective parties and rightly found that there was effective consultation with the Supreme Court for appointment of the judicial officers and that has been done as per the provision of the Constitution. Dr Kamal Hossain strenuously argued that the conduct of respondent No.1 in the formation of the committee will have far reaching effect on the election committee but in view of the clear finding of the High Court Division we find no force in the submission. Dr Hossain placed before us the judgment of the High Court Division and other materials but failed to point out any illegality in the judgment which may call for our interference.
There is no merit in this petition and the same is accordingly dismissed.