Can EC decide the fate of the two MPs-elect?

Two lawmakers elected in the January 5 polls on Awami League nomination were found guilty of breaking electoral laws. On directives of the Election Commission (EC), an electoral inquiry committee led by a joint district judge conducted the probe and submitted its report to the EC. On the basis of the report, the EC served notices to Sheikh Afil Uddin and Monirul Islam, who were declared elected MPs from Jessore-1 and Jessore- 2 constituencies respectively, asking them to explain why their candidacies would not be cancelled on grounds of committing electoral offences.
What are the offences? Afil, who is also the vice-president of Jessore district unit of AL and was elected as MP in 2008, allegedly instructed party men to ensure win of his relative Monirul by occupying poll centres and casting false votes. “One hundred boys will always be in the queue. One will enter the booth and then stand at the end of the line again,” he instructed. He also assured the supporters of Monirul of protecting them if the administration tried to take any action against them. A video clip of his speech reached journalists.
In response to the EC's show cause notices, both Afil, who was elected unopposed, and Monirul who won January 5 polling, followed the traditional path of denial. They claimed that the news was not correct, and it was given with a view to create controversy. They did not even bother to challenge the EC's authority regarding scrapping of their candidatures. In their view, the EC can now no more cancel their candidacies as the election was over. They claimed that the returning officer, if he wanted, could cancel their candidature before the polls. Is it true?
Section 91E of the Representation of the People Order gives the EC authority to punish Afil and Monirul by scrapping their candidacies in the January 5 polls. This provision is very clear. It empowers the EC to pass an order for investigation into an alleged engagement or attempt to engage in any serious illegal activity, or violation or attempt to violate any provision of RPO or electoral rules or the electoral code of conduct for which someone may be disqualified from being elected as a member of parliament. A contesting candidate does not need to commit the offence himself for the EC to use this authority. The EC may take action against his agent or any other person who, by his order or with his direct or indirect consent, commits an offence. The EC may initiate proceedings against such offence on receiving information about it from any source or any verbal or written report. Before taking final action under this provision, the EC will hear the candidate accused of this offence.
The EC has initiated the appropriate procedure. After the investigation, the EC will hear Afil and Monirul on January 27 before deciding whether it will cancel their candidacies and order fresh elections in the two constituencies; or it will publish election results of Afil and Monirul in the official gazette, which has been kept suspended because of the ongoing procedure.
Section 91E shows that Afil and Monirul are unaware of the sweeping authority of the EC as they refused to accept its power to cancel candidacies. It seems they are also unaware of the EC's immense inherent power which empowers it to even cancel election results on grounds of irregularities in the polls. Regarding cancellation of election results in Noor Hossain vs Nazrul Islam case in 2000, the Appellate Division of the Supreme Court explained the inherent powers of the EC. “We cannot but reiterate that if there was contemporaneous report of allegations about disturbance, rigging of ballot papers or election not being held justly, honestly and fairly, then after being satisfied about the correctness of the report or allegations, Election Commission would be justified to cancel the results of the election and direct re-poll...,” observed the Appellate Division.
By exercising its inherent powers, the EC cancelled the election results of Daulatkhan Paurasava in 2004 on grounds of gross irregularities in the polls although the returning officer sent the results to the Commission. At that time, this specific provision was not introduced in the electoral laws empowering the EC to scrap candidacies in the polls to the parliament and local government bodies. It was introduced in RPO before the December 2008 parliamentary polls. Later, a similar provision was introduced in other laws concerning elections to the different local government bodies.
Now, the onus lies on Kazi Rakibuddin Ahmad and his team to uphold the dignity and authority of the EC by making a judicious decision in the Afil and Monirul case. This is a very sensitive case for the EC, which could not demonstrate its ability and efficiency to hold free and fair elections. Rather, it had been mired in controversy when, last September, it decided to abolish the EC's sweeping authority to cancel anyone's candidacy in the parliamentary polls for serious electoral offences. In defence, Rakibuddin and his team described the authority “meaningless” and “inapplicable” as in their view it was never used. Their justification was ridiculous, and triggered huge uproar. In the face of a tidal wave of criticism, they scrapped their decision. Now, Rakibuddin and his team have got the occasion to exercise the authority. Whatever decision they take, it will have a huge impact on the EC.

The writer is Senior Reporter, The Daily Star.