BANGABIR KADER SIDDIQUI Vs. GOVERNMENT OF BANGLADESH

JUDGEMENT

(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.

(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.