Does Gazipur poll postponement contradict the constitution?

Mizanur Rahman Khan | Update:

The immediate reaction of Chief Election Commissioner (CEC) KM Nurul Huda to the postponement of the Gazipur city elections was, “I do not know why the High Court has postponed the Gazipur polls.” The question now is whether such a comment by the CEC is a violation of Article 125 of the Bangladesh constitution.

On the day that the election was postponed, that is 6 May, the CEC said in Khulna, “I learnt about the court order from the TV news. Let me learn more about it, and then I will comment.” His statement is not in keeping with the constitution. There is no provision under the present constitution for him to make such a remark.

After an amendment to the constitution brought about in 2011, it had been made compulsory for the CEC to be informed if any election is postponed, whether it is a local government one as the Gazipur city polls, or the election to the national parliament, once the election scheduled has been announced.

Article 125 states: “A court shall not pass any order or direction, ad interim or otherwise, in relation to an election for which schedule has been announced, unless the Election Commission has been given reasonable notice and an opportunity of being heard.”

Former election commissioner M Sakhawat Hossain told Prothom Alo, the commission had been facing the problem of elections suddenly being held up. The Dr Shamsul Huda commission came up with a provision to add to the constitution and Awami League accepted that. But from the CEC’s words, it seems that that the provision has been violated.

According to Article 125, the CEC must be given reasonable notice before the hearing. Has the CEC’s “I don’t know” been in keeping with the constitution? There are two sides to the matter. One is legal and the other, political. Politically, the ruling party has displayed dismay at the postponement and has said the government has nothing to do with the court order. However, they are clearly relieved at the Gazipur situation. It was the same relief that they felt with the postponement of the Dhaka North city corporation polls. It was felt that that government was not ready to accept defeat, which seemed to be a clear possibility in the election.

The repeat of the Dhaka north city poll postponement in the case of the Gazipur city polls hardly seems a mere coincidence. Political circles also raise their eyebrows about the attorney general’s reactions. He can be spontaneously vocal at times, sometimes rushing to the chamber judge in agitation, at other times, extremely cautious and conservative.

Regarding the postponement of the Gazipur city election, attorney general Mahbubey Alam on Tuesday told Prothom Alo, “The matter lies with the Appellate Division. It will not be correct to comment on it now.” About the state’s position on the matter, he said, “Certain quarters have appealed. What more can we do? How can I say anything now?” Does that mean the state has no to comment on the matter? He said, it will when the need arises, not now.

When asked whether this is a violation of the constitution, one of the authors of the constitution, Amir-ul Islam, did not comment directly. But he did clearly tell Prothom Alo, “The preconditions laid down by the constitution regarding any writ petition to postpone an election, are compulsory. If these are not followed, then the writ is not maintainable.”

However, election commissioner Mahbub Talukdar on the cell phone yesterday said, if it is about a writ, then Articles 102 and 125 must be read together. Article 102 does not mention any election.

Article 102 in the 1972 constitution upholds the rights of an aggrieved person to file a writ. There it is said in the case of any writ regarding ‘prejudicing or interfering with any measure designed to implement any development programme, or any development work’, the attorney general must be given ‘reasonable notice’ and the High Court must not given any order until he has been heard. But because this article was curbing the EC’s interests, that provision was added to Article 125. It is rare that any amendment is made to the constitution at the behest of the EC. And yet they themselves are complacent about their constitutional rights.

In reply to another question, election commissioner Mahbub Talukdar confirmed that though one of the EC’s panel lawyer Touhidul Alam took part in the hearing, he had no power of attorney in the case.

Elections experts feel that the EC should approach the Supreme Court separately for a final settlement regarding legitimacy of the Gazipur writ petition outcome and the effectiveness of Article 125. After all, The Gazipur matter is just a repeat of what happened with the Dhaka North city polls. Such a copycat trend must be halted.

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