Monday, 11 April 2011

A law-maker’s position cannot remain uncertain in law

With the lawyer of the Election Commission missing a three-week deadline to give reply to a High Court Division Bench rule as to why the EC gazette declaring Mohiuddin Khan Alamgir’s seat in Parliament vacant should not be declared illegal, the matter looks likely to prolong indefinitely as the rule, first timed for six months, has later been extended till the disposal of the rule.

Election Commission officials told The New Nation that they received the written order staying vacation of the seat and the rule on 02 January last. The stay, first scheduled to expire on 25 March, was extended on March 14 till the disposal of the rule. Lawyers of the Election Commission avoided direct answer to the question why they failed to respond to the rule even after getting copy of the HC Division’s order, but said, disposal of the case got delayed as the court was overburdened with cases.

The seat of Dr Mohiuddin Khan Alamgir was declared vacant because the Election Commission’s earlier decision of cancellation of his nomination paper was found valid by the Appellate Division of the Supreme Court.
Initially the returning officer rejected Mohiuddin Khan Alamgir’s nomination paper on 03 December 2008 on the ground of conviction under Section 26(2) and 27(1) of the Anti-Corruption Commission Act, 2004. The Special Judge, Dhaka sentenced him to 3 years of simple imprisonment and 10 years of rigorous imprisonment respectively and a fine of Taka ten lacs in default to suffer imprisonment for one year more vide its judgment of 26 July 2007. Dr. Khan filed appeal before the High Court Division against the conviction and sentence on 04 November 2007. The High Court Division granted him bail on 28 August 2008 and stayed the sentence.

Dr. Khan filed appeal before the Election Commission against the rejection of his nomination paper. The Election Commission rejected his appeal on 08 December 2008. Dr. Khan filed a writ petition before the High Court Division against the order of the Election Commission.

The High Court Division by a judgment and order dismissed the writ petition summarily on 15 December 2008 on the ground of maintainability meaning that the legality or illegality of cancellation of the nomination paper is an election dispute and cannot be dealt with under the writ jurisdiction.

It remains an interesting legal point to be resolved by the High Court Division as to how after the Appellate Division’s finding that the High Court Division was right in not interfering with the Election Commission’s finding that his nomination paper was not legally maintainable.

Dr. Khan filed leave petition before the Appellate Division against the judgment of the High Court Division. The Chamber Judge stayed the operation of the judgment of the High Court Division and directed the Election Commission and Returning Officer, Chandpur to accept the nomination paper of Mr. Khan. Accordingly Dr. Mohiuddin Khan became a candidate in the last general election held on 29 December 2008 and won the election.
Subsequently the Appellate Division heard the leave petition filed by Dr. Mohiuddin Khan and by a judgment and order on 15 July 2010 rejected the leave petition and upheld the judgment of the High Court Division. The Election Commission on the basis of the judgment of the Appellate Division issued a gazette notification declaring the seat vacant of Dr Mohiuddin on 22 September 2010. Dr. Mohiuddin again filed a writ petition challenging the gazette notification declaring his seat vacant for holding fresh election.

The High Court Division by an order on 26 September 2010 stayed the operation of the order of seat vacancy for six months and also issued rule to that effect. The High Court Division on 14 March 2011 extended the period of stay till disposal of the rule. The Election Commission has yet to take an effective step for vacating the stay order or getting the matter heard before the High Court Division. This gives Dr Mohiddin a chance to continue as an MP till the new writ matter is decided.

Near about six months have elapsed since the High Court Division issued rule asking the Election Commission to show cause. The High Court Division’s stay order was available in print and received by the Election Commission on 02 January last. But appeal against the same remained to be filed till 14 March when the period of stay was extended.

The puzzle and the enigma of how Dr. Mohiuddin Khan Alamgir remains a law-maker in the eye of law needs to be resolved as it has become a matter of  great public interest centering on his participation in the parliamentary procendings and his legal position to represent the people of his constituency. Because of special circumstances of the case raises many questions. The lawyers would not comment, the matter being pending decision of their Lordships.
New Nation 

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