In the wake of the controversy over the unopposed election of 153 MPs in the January 5 polls, the High Court yesterday ruled that there was no scope to question their election under the existing legal framework.
A two-member HC bench came up with the ruling by rejecting a petition that challenged the RPO provision allowing the Election Commission to declare the MPs elected unopposed without a single vote being cast.
According to Article 19 of the RPO, if there is only one candidate in a parliamentary constituency, the EC can declare him/her elected.
The High Court in its judgement defended the article and said it was not contrary to the country's constitution.
Any law cannot be declared unconstitutional unless it is conflicting with any provision of the constitution and its spirit and scheme, observed the HC bench consisting of Justice Mirza Hussain Haider and Justice Muhammad Khurshid Alam Sarkar.
The unopposed election triggered huge uproar as it denied more than half of an altogether 9.19 crore voters the right to choose their representatives.
Article 122 (1) of the constitution upholds their voting right by emphatically stating that elections to parliament shall be on the basis of adult franchise.
Also, Article 65 (2) of the charter asserts the pre-eminence of voters when it notes that parliament shall consist of three hundred members to be elected by direct election.
Thus, voters' right has been given pre-eminent position in the constitution where it declares the country as a Republic and democracy as one of the four fundamental state principles.
Two judges of the Appellate Division of the Supreme Court earlier had unequivocally defended the people's voting rights in the constitution's 13th amendment verdict that declared the caretaker government system illegal.
"It will be a mockery to say that all powers of the Republic belong to the people as enshrined in Article 7 of the constitution unless the people get a chance to practise democracy, that is, they can exercise their right of adult franchise in choosing their own representatives in free, fair and impartial general elections of members of parliament," said Justice Abdul Wahhab Mia.
In the absence of free and fair elections, parliament cannot have real legitimacy and cannot be said to be sovereign as well and in such a parliament, people will have no representation, he added.
For his part, Justice SK Sinha said, "The constitution abhors any system of governance other than a government which is elected by the people."
The Awami League-led alliance that won a more than two-thirds majority in the January 5 polls and formed the government is still facing criticism for the mode of the voter-less election amid a boycott by the BNP-led opposition alliance.
On the issue, many AL top leaders have been blaming the BNP-led opposition for boycotting the polls which contributed to the unopposed election of the large number of MPs.
Prime Minister Shiekh Hasina on December 14 last year said her party, the Awami League, had reached an understanding with some other parties joining the polls. As part of the understanding, some candidates had withdrawn their candidacies, leading to unopposed elections in many constituencies.
Of the 153 lawmakers, 127 were from the Awami League alone.
Jatiya Party leader Khandker Abdus Salam, who was declared disqualified from contesting the polls from a Gazipur constituency for defaulting on loan repayment, filed the petition challenging the RPO provision in last December.
After yesterday's court judgement, his counsel barrister Hassan MS Azim told The Daily Star that his client would decide about moving an appeal before the Appellate Division of the Supreme Court to challenge the HC order after getting the copy of the full judgment.
However, Attorney General Mahbubey Alam welcomed the court decision and said the debate over the unopposed elections of 153 MPs has been settled though the verdict.
On behalf of the government, he earlier said holding the January 5 election was necessary for the continuity of constitutional and democratic processes.
But jurist Shahdeen Malik in his instant reaction said the HC judgement seems to have priorities' literal meaning over the real meaning of elections in terms of participation of people in choosing their representatives and government.
"Such an interpretation, similar to the 13th amendment judgement [scrapping the caretaker government system], is not in my view is correct interpretation of the spirit of democracy, elections and the Constitution. Such narrow and literal interpretations may further destabilise the political system," he added.
Following such interpretation, if there is only one candidate in each of all 300 constituencies, then there will be no need for election, but the election will be valid, he said.
To dispose the petition, the HC bench had sought opinions from legal experts as amici curie.
Of them, Dr Kamal Hossain, barrister Rafique-Ul Huq and Shujan Secretary Prof Badiul Alam Majumder opposed the RPO provision on uncontested elections and the January 5 polls as well.
"Declaring 153 people elected unopposed in the January 5 parliamentary election is alarming, as representatives of the people must be elected through voting, according to the constitution," Kamal Hossain, one of the framers of the constitution, told the court.
Rafique-Ul Huq observed that the January 5 election was not an election in the eye of law.
“It was a mockery of an election. It was more a selection than an election. It was a football game without any goalkeeper. Our constitution does not contemplate such an election for members of parliament,” he said.
Advocate Mahmudul Islam, barrister Rokanuddin Mahmud and barrister Ajmalul Hossain supported the RPO provision, saying it was necessary and not contrary to the constitution.
Talking to The Daily Star, Prof Shah Alam, a member of Bangladesh Law Commission, and Prof Sarkar Ali Akkas, dean of law faculty of Jagannath University, too supported the HC verdict.
They claimed there was no legal merit in the petition against the RPO provision.
The HC yesterday also rejected another petition seeking introduction of a “no vote” provision in the parliamentary polls.
It opined that the HC cannot dictate to parliament to make any law incorporating a “no vote” provision.
Had there any constitutional provision on inclusion of the provision of "no vote", the court would have directed parliament to do so, it said.
The HC said in India, there is provision of a "no vote" in the election law as the parliament of the country decided to incorporate such rule.