Law alter views
Reminiscence of a lost battle: Arguing for the revival of second schedule
M. Jashim Ali Chowdhury
The original Constitution of 1972 with so many of its illuminating features is not excessively hailed as a document of hope. So many of its features had cures to so many of the hazards created by its post-martial-law version. Take for example the issue of a significant presence of Bangabhaban in national life. The majestic fashion in which the high stature and weight of a 'titular' Presidency was upheld in the original constitution, if kept alive could have served its institutionalisation immeasurably. In recent years, unfortunately the President, 'a symbol of national unity', is not less partisan then the Cabinet itself! But what did the original constitution contemplate?
Electing the President
The framers of the Constitution 'had the foresight to apprehend that this country might not always be served by wise, conscientious and true patriotic persons' (The Appellate Division in 5th Amendment Judgment, p 58). Perhaps as a pre-caution on their part, they prescribed a commendable method of electing the President. It was taken care of that no MP, while voting to elect the President, act as a mere party puppet supporting the party nomination. Article 48(1) of the original Constitution prescribed the procedure which was exhaustively elaborated in the Second Schedule. The Second Schedule introduced a Secret Ballot system of voting. No ballot or its counter foil could bear any mark or sign giving any clue regarding the identity of a particular MP voting. Even there was a provision in Paragraph (12a) of the Second Schedule for cancelling a ballot if there was any sign of identification of the voter. The MPs were to act as liberated agents voting for any candidate they like.
For obvious necessity of the new system, the Second Schedule was omitted by the 4th Amendment. Till then it was not revived, not even by the 12th Amendment reviving the Parliamentary Democracy. Rather the 12th Amendment caused the Article 48(1) provide: 'There shall be a President of Bangladesh who shall be elected by members of Parliament in accordance with law.' Instead of 2nd Schedule, now Parliament is to enact law regulating the Presidential election. Accordingly the President Election Act, 1991 was passed in the Parliament. The President Election Rules 1991 were made by the Election Commission in pursuance of the Act.
Section 10(3) of the 1991 Act provides that Election Commission should prepare ballot paper of the required number and each ballot paper should have two parts. In the counterfoil in each ballot paper the name of the elector (i.e, the MP voting for a candidate) should be written. An MP is required to sign his name both in the outer foil and counter foil making his choice vulnerable to exposure. Section 11 provides that the Chief Election Commissioner, as the Returning Officer, shall count the votes openly.
Why open ballot?
The ulterior motive behind the introduction of Open Ballot system was exposed when the BNP government nominated for the Presidency Mr. Md. Abdur Rahman Biswas, controversial for his Anti-Liberation War role during 1971. The ruling party ignored the repeated call from the main opposition Awami League (AL) to nominate a candidate acceptable to all. AL, though was sure of the defeat of its candidate, nominated Justice Badrul Haider Chowdhury, an ex Chief Justice of Bangladesh. In the meantime criticism and conscientious objection against the BNP nomination was raised across the country. Situation was such that even some pro-liberation war MPs of the ruling BNP were considering to vote against Mr. Abdur Rahman Biswas. On October 8, 1991 the election was held and the ruling party candidate escaped an almost defeat. Out of 330 votes, Mr. Biswas secured 172 (least votes needed were 166) and Justice BH Chowdhury got 92 votes. A total of 66 MPs refrained from voting.
Abdus Samad Azad v. Bangladesh: The forgotten battle
As a last resort after the election, six MPs of AL namely, Abdus Samad Azad, Suranjit Sen Gupta, Tofael Ahmed, Matia Chowdhury, Rahmat Ali, Md Nasim and Prof. Abdul Hafiz challenged the President's Election Act 1991. Br Moudud Ahmed, then a Jatya Party MP, also challenged the Act and the Rules [44 DLR 354]. As the writ petitions involved similar questions of laws, they were considered together before the Bench of F.H.M Habibur Rahman and Abdul Hasib JJ. While the Senior Judge of the Division Bench M Habibur Rahman J rejected the writs summarily, Abdul Hasib JJ issued a Rule Nishi (And later on, Justice Hasib was not confirmed as a permanent Judge of the High Court Division!). Ultimately the issue was thrown to the Single Bench of Anwarul Hoque Chowdhury J.
The Petitioners' Claim - The intention of the petitioners was not the revival of Second Schedule through judicial order. In fact the Court lacked such power. They were simply trying to argue that any law in this regard must provide a procedure more or less similar to the omitted Second Schedule. Even in the absence of Second Schedule, the over all scheme and spirit of the Constitution warranted a 'Secret Ballot' voting in Presidential Election. Barrister Amirul Islam appearing on behalf of the petitioners attacked the 'Open Ballot' from three sides:
First, Open Ballot system was repugnant to Article 39 of the Constitution guaranteeing unconditional and unrestricted freedom of thought and conscience. Since the 1991 Act put a bar on the independent and conscientious decision making by the MPs voting for the Presidential Candidates, now their fundamental right to choose the President freely was put at a stake.
Second, considering the Preamble and Articles 7 and 11 as a whole, the 1991 Act stroke at the 'Basic Structure' of the Constitution by converting the concept of 'Presidential Election' into a mere 'Selection' (Para 6).
Third, by the 1991 Act, the vice of Article 70 would be unnecessarily extended to the Presidential Election. MPs voting in Open Ballot would run the risk of losing his seat, had he voted against the candidate nominated by his party. The philosophy behind the inclusion of Article 70 was to prevent malicious defection and unnecessary defeat of the Cabinet in the floor. Therefore its effect should be limited only to the essential legislative affairs. The intention of the framers of the Constitution not to allow Article 70 operate in Presidential Election was evident in the Second Schedule (Para 26).
The Attorney General's defence - The then Attorney General Barrister Aminul Huq was very much literal and subjective in his arguments:
First, to the Attorney General, the right to vote was not a fundamental right. Being a creation of statute it could be regulated or even taken away by another statute. To him, choosing the method of voting was a matter of political convenience and necessity of particular occasion and no one could claim a fundamental right to vote in a particular method.
Secondly, voting by Open Ballot was not totally unknown to the Constitution, specially when election of the Leaders of the House and Opposition, Speaker, Deputy Speaker etc were held through Open Ballot (Para 7). Here the Attorney General cautiously evaded a vital difference between these offices and the Presidency. That the level of 'neutrality' expected from the President was much higher than the expectation from these offices was totally bypassed.
Thirdly, regarding the operation of Article 70, the Attorney General straightly argued that political parties should get priority in all public affairs. MPs were bound by the party mandate and directions. People elected them on the basis of party and so they had a right to know for whom their representatives were voting!
The Court's response - The Court upheld the arguments of the Attorney General in its totality (Para 18, 20 and 22):
First, it offered a new dimension to the concept of 'Freedom of Thought and Conscience.' The gist of the concept may be summed up as follows: Unrestricted freedom of thought and conscience relates to the 'Private Liberty' of citizens. Private Liberty is an opportunity to express freedom of choice in those areas of rights where the result of its effort mainly affects that individual and none else. An MP while voting in Presidential election doesn't exercise Private Liberty rather he performs a public duty. In exercising public duty no unrestricted thought and conscience is available (Para 25).
Secondly, the Court was sharp in rejecting the basic structure approach. Neither the right to vote nor the right to secret vote were fundamental rights or policy to be treated as a salient feature of the Constitution to attract the doctrine of Basic Structure (Para 20).
Thirdly, interestingly, while emphasizing the necessity of following the party line the Court seemed to be 'more executive minded than the executive' - to quote Lord Atkin from Liversidge v. Anderson 142 A.C. 206. The inherent restrictiveness in Article 70's applicability was not taken care of. Rather it was interpreted to be a super encompassing one: “There is a self imposed restriction in Constitution itself which speaks of the role of a political party and its manner of influence upon a member of a political party, voted to Parliament under its ticket. An MP is thus not a free agent to act while voting in Parliament” (Para 20).
Putting arguments into action
Apparently this last effort of prominent AL legislators was lost to some technical, non-liberal and bookish stances taken by the State and the Apex Court. But what about the political commitment showed by AL thereby? Does it still remember the legal battle it fought for the dignity of Presidency? At least Sri Suranjit Sen Gupta and Mr. Tofael Ahmed should not forget. History has put on them the burden to put their arguments into reality. Therefore, we want complete revival of the 2nd Schedule.
The writer is Lecturer, Department of Law, University of Chittagong.