EC violated constitution

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The High Court (HC) yesterday ruled that the Election Commission (EC) has violated the constitution by not holding the general election within the stipulated 90 days since dissolution of parliament.

It, however, accepted the commission’s decision to hold the long-stalled election in December this year, considering it reasonable in the context of existing realities.

In reaction to the HC observations, Election Commissioner Muhammed Sohul Hussain said the present EC was formed after expiry of the 90-day time limit.

With ATM Shamsul Huda at helm, it took charge on February 5 last year.

Ruling on a writ petition yesterday morning, an HC bench comprising Justice Mohammad Abdur Rashid and Justice Md Ashfaqul Islam also observed that democracy and the rule of law could not be established due to repeated violations of the constitution.

It said, “As per article 123(3) of the constitution, it is mandatory for the Election Commission to hold the election within 90 days after days after parliament is dissolved. The constitutional provisions are self-executive, and the commission has no right to avoid or violate those.”

The bench said in no way can it be acceptable that the EC would not hold the election by that time and allow an unelected caretaker government to run the country.

“The Election Commission has no discretion to extend the time beyond 90 days,” it added.

Besides, the court expressed surprise that chief adviser, not the EC, has declared the tentative time table for the election while leaving it to the EC to fix the specific polls date.

“We did not find any provision in the constitution that empowers the chief adviser to make such a statement,” it said.

It said the EC still does not seem to be independent of the Chief Adviser’s Office, and so measures should be there to enable its Secretariat to work freely.

According to the HC observations, the next parliament will look into EC’s failure to hold the election in time.

The caretaker government’s duty is to assist the commission in holding the polls to hand over power to peoples’ representatives, the court continued.

“The framers of the constitution with their wisdom and insight drafted the rules stipulating the time limit for holding the national election. But those provisions were not followed.”

Responding to the writ petition filed by barrister Masood Reza Sobhan, a senior lawyer of the SC, the HC on January 27 ordered the EC to explain why it shall not be directed to hold the general election within the next 90 days.

It also asked the commission to show cause why its failure to hold an election within 90 days since dissolution of parliament in October 2006 shall not be declared unlawful.

Masood Reza yesterday told newsmen that the election commissioners should resign their positions following the HC judgment.

He said it’s quite clear from the HC judgment that the EC has been delaying holding the election intentionally.

“They could have completed the voter list, identity cards and other processes for holding the polls much before. But they killed time to make sure the election cannot be held before December this year,” he said.

Shahdeen Malik, counsel for the EC, stressed on the HC’s observation that the decision to hold the parliamentary election in December is reasonable.

He said whether to file an appeal with the apex court against the HC judgment would be decided later.

The polls commission on May 6 submitted a statement on affidavit informing the court that the ninth parliamentary polls would be held by the year-end. It however did not mention any specific date for election.

In order to hold a free, fair and acceptable election by the year-end, the EC would announce the election date in due course, the statement read.

It also said over 6.41 crore people have been registered as voters as of May 2.

Earlier on April 30, the court asked the EC to inform it through affidavit when it would have the voter list ready and hold the next parliamentary election.

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