Last week a certain news item drew attention. According to the election commission (EC), upazila parishad chairmen, pourashava mayors and others in such positions would have to resign from office at first if they were to compete in the coming parliamentary polls. Such an observation had two outcomes.
Many of the incumbent chairmen and mayors hurriedly submitted their resignations to the relevant authorities so that they would be able to contest in the coming election. Secondly, returning officers cancelled many of their nomination papers as their resignation letters were not accompanied by documents indicating that these had been accepted by the relevant authorities. In other words, they had not submitted papers indicating their resignations had taken affect. As a result, it was taken that these chairmen and mayors were still n their respective posts while submitting their nomination papers and so these were rejected. But this interpretation of the rules by the EC and the returning officers is wrong.
We have five types of local government –union parishad, upazila parishad, pourashava, zila parishad and city corporation. There are separate laws for each of these local government bodies. There is the local government (union parishad) act 2009, the local government (pourashava) act 2009, etc. The union parishad, upazila parishad and zila parishad are headed by chairmen. The pourashava and city corporation are headed by mayors.
A discussion on the legal interpretation of all the local government laws and the chairmen and mayors would be lengthy and complex. So focusing just on the local government (pourashava) act 2009 will be enough to show that an incumbent pourashava mayor can contest in the national parliamentary election while remaining in office. He does not have to resign as mayor before contending for a parliamentary seat. Since this resignation is not essential, then the question of whether his resignation was accepted or not is irrelevant.
Section 33 of the pourashava act mentions the circumstances where the office of the pourashava mayor will be considered vacant. Obviously, if the mayor passes away, the office will be vacant. Other than that, the position may be vacant in the case of resignation or other reasons. What is important here is that Section 33 (1E) states that the mayor’s office will be deemed vacant if he is elected as member of parliament. This makes it clear as daylight that a pourashava mayor can contest in the parliamentary polls while remaining in office. If he wins in the parliamentary election, then his mayoral post will fall vacant. But if he fails to win in the parliamentary polls, then he will remain as pourashava mayor. In other words, it is absurd to maintain that a pourashava chairman will have to tend in his resignation, then the resignation has to be accepted and only then can he submit his nomination papers for the parliament. It is an incorrect interpretation of the law to maintain that since they are in an office of the republic or government, they cannot contest in the parliamentary polls without resigning at first.
The bottom line is, many mayors and chairmen have resigned from their posts in order to contest in the national parliamentary election, but even so they have failed to become legitimate candidates simply because their resignations have not been accepted as yet. Such flawed interpretations of the law have left these unfortunate persons high and dry.
* Shahdeen Malik is a lawyer of the Supreme Court and teaches law at the University of Asia Pacific. This piece appeared in the print version of Prothom Alo and has been rewritten in English my Ayesha Kabir