Saturday, 2 April 2011

HC stays EC gazette scrapping Alamgir’s JS membership

The High Court yesterday ( September 26) stayed for six months the Election Commission’s gazetted decision declaring vacant the parliament membership of Dr Mohiuddin Khan Alamgir.

MK Alamgir, also a presidium member of the Awami League, was elected from the constituency no-260, Chandpur-1 to the 9th Parliament election on Awami League ticket.

Upon a writ petition filed by Alamgir, the High Court bench comprising Justice AHM Shamsuddin Chowdhury Manik and Justice Sheikh Md Zakir Hossain also issued a rule upon the Election Commission to explain within three weeks as to why its special gazette notification vacating the seat of the petitioner should not be declared illegal and without lawful authority.

The lawmaker’s lawyers Barrister Rafique-ul Huq and Barrister Rokon Uddin Mahmud told reporters that parliamentary membership of MK Alamgir would remain infact following the High Court order.
In an immediate reaction, MK Alamgir told reporters that the Election Commission had taken the decision hastily without examining the Supreme Court order, which was illegal as well as against the spirit of the Constitution, he said.
“Upholding the constitution the High Court today passed an interim order against the Election Commission decision,” he said. 
During hearing Barrister Rafique-ul Huq told the court that the Election Commission had rejected the nomination paper of his client on the ground of conviction and sentence in a special case of 2007, which was set aside by the High Court Division and latter the same was also upheld by the Appellate Division. Consequently, the status of the petitioner is that he has never been convicted, he noted.
He also said that his client was sentenced under the Emergency Power Rules, but the parliamentary election was held after repeal of the Emergency Power Rules. Hence, the petitioner was not disqualified in contesting the 9th Parliamentary Election, he pointed out.
Huq pointed out that the Supreme Court verdict did not vacate his client’s parliament membership as it upheld the High Court order declaring the returning officer’s decision to cancel his nomination paper valid.
“As such, special gazette notification of the Election Commission vacating the parliamentary seat of the petitioner is illegal, without lawful authority and is of no legal effect,” Huq added.
 Barrister Rokon Uddin Mahmud, another counsel of the petitioner told the court that as per the section 3 of the Member of Parliament Determination of Dispute Act-1980, the Election Commission is not to take any decision relating to parliament members without receiving references from the Speaker.
As per the section 66 of the Constitution the Speaker will send his reference to the EC, the Election Commission will give its decision to the Speaker. After scrutinising the EC’s decision the Speaker will take final decision about parliament membership of his client under the section 178(2) of the parliament procedure, he noted.
But, the Election Commission vacated his parliament membership without following laws of the land, he said.
On September 22, the Election Commission declared vacant Alamgir’s parliament membership for, what it said, abiding by the Supreme Court verdict.
As per the law, the by-election to the constituency would be held within 90 days of the publication of the gazette and the election schedule would be declared in time.
On July 15, the Appellate Division upheld a High Court ruling that had judged as legal the EC’s decision to cancel the nomination paper of Awami League MP Alamgir.
In the run-up to the election, the EC returning officer, on December 3, 2008, rejected Alamgir’s nomination paper, as he had been sentenced to 13 years in jail in a corruption case.
Alamgir’s appeal application to the EC was turned down five days later and his writ petition to the High Court was rejected on December 15, 2008.
The AL presidium member was, however, able to participate in the election as the Appellate Division on December 18, 2008 temporarily stayed the EC’s refusal to accept the papers.
The Independent 

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