Who will take the blame?
Certain directives of the Supreme Court have created new circumstances concerning candidature in the coming election. The right of 17 BNP candidates to contest in the election has been suspended. With no BNP or Jatiya Oikya Front candidates in these seats, the ruling Awami League can make a clean sweep to victory in these constituencies. The two Awami League candidates whose candidature has been suspended are both ‘rebel’ candidates and so this too goes in favour of the ruling party.
This large number of suspensions by the Supreme Court, imposed after the election commission has finalised the candidatures and allocated the party election symbols, is quite unprecedented. In past elections, it was the the Supreme Court that restored the candidature of the rejected candidates in most cases.
BNP’s secretary general and a number of Oikya Jote leaders have questioned these directives of the Supreme Court. This may be a political move on the part of the parties, but legally speaking, these directives are certainly open to question.
The first question is over the jurisdiction of the Supreme Court. Article 102 (2) of the constitution provides that if an issue cannot be resolved satisfactory by any other law, there is scope to approach the Supreme Court. However, even after that, in keeping with the ‘Doctrine of Political Question,’ the Supreme Court generally speaking does not get involved in political matters. Also, if a legal interpretation on any issues has already been given by the Supreme Court (such as the Appellate Division of the Supreme Court), it is normally not retracted at a later date. In several verdicts of the Appellate Division (such as 62 DLR 428, 2010) the court’s jurisdiction regarding electoral matters during the election is very limited. And in the constitutional amendment of 2011, it was said that if the court issues any directives after announcement of the election schedule, the election commission must be given due notice and scope for hearing.
The recent rulings of the Supreme Court were interim orders. That means before these are finalised, the election commission will be given scope for response and hearing. That means there is chance that the candidature of the suspended candidates may be restored. But there is hardly any time left for the election. So not only have they been robbed of their right to contest the election, but the voters have also been deprived of the right to vote for their chosen candidates.
Significant among the suspension of certain BNP candidates’ candidature, is the matter of 9 upazila chairman being barred from contesting. Section 8(2) of the upazila parishad act states that if they are permanently established in an office of profit or are elected members of parliament, then they cannot remain chairmen. That means the office of chairman is not one of profit and they cannot be disqualified from contesting in the election.
The Representation of the People’s Order (RPO) provides no obstacle to their contesting in the election. According to RPO 12 (1)(c), there is restriction on anyone in any statutory public authority from taking part in the election. But according to the upazila parishad (Section 5) or pourashava act (4), these institutions are not any such authority. They are described as body corporate.
The upazila parishad chairmen and pourashava mayors or their equivalent are representatives of local government. A verdict of the High Court (65 DLR 387) clearly states that the office of mayor is not an office of profit. Last national election, many local government representatives had the chance to contest and at least four of them even won in the election.
Even after such precedence and provisions, it is not understandable how an upazila chairman is barred from contesting in the election because he did not resign from office or his resignation was pending acceptance.
During the final hearing, the commission will have scope to raise these questions. The commission surely had justified arguments for approving the candidature of the candidates who had been suspended by the Supreme Court. The commission has the responsibility to strongly raise these issues in court.
Then again, if the Supreme Court had legal reasons to bar the candidates from contesting, then it should have been the election commission that cancelled their candidature. But the election commission has not done that. If it has erred, why should any political party, candidate, or their potential voters have to pay for their errors? And if the commission has not erred, then why has it deprived them from participating in the polls?
BNP has demanded that the voting be postponed in the constituencies where their candidates have been barred from contest. The commission has rejected this demand. But there is still scope for reconsideration.
In the case of legal interpretation, public interests must be taken into consideration. A nation takes its most important decision though the national election. If candidates have the chance to contest in the election and the voters have the right to choose their representatives, then that goes in favour of the greater public interest.
* Asif Nazrul is a professor of law at Dhaka University. The writer’s views are his own. This piece appeared in Prothom Alo in Bangladesh and has been rewritten in English by Ayesha Kabir.