EC violated constitution

The High Court (HC) yesterday said the Election Commission (EC) has violated the constitution by not holding the general election within the stipulated 90 days since dissolution of parliament.
It, however, accepted the commission's decision to hold the long-stalled ninth parliamentary polls in December this year, considering it reasonable in the context of existing realities.
Ruling on a writ petition, a bench of Justice Mohammad Abdur Rashid and Justice Md Ashfaqul Islam also observed that democracy and the rule of law could not be established due to repeated violations of the constitution.
It said, “As per article 123(3) of the constitution, the Election Commission is bound to hold the election within 90 days after parliament is dissolved. The constitutional provisions are self-executing, and the commission has no right to avoid or violate those.”
In reaction to the court's observations, Election Commissioner Muhammed Sohul Hussain said the present EC was formed after expiry of the 90-day time limit.
With ATM Shamsul Huda at helm, it took charge on February 5 last year. In an affidavit filed on May 6, it informed the court of its plan and preparations to hold the polls by the year-end.
The HC in its ruling said, “The Election Commission has no discretion to extend the time beyond 90 days.”
In no way can it be acceptable that the EC would not hold the election by that time and allow an unelected caretaker government to run the country, it added.
Besides, the judges expressed surprise that the chief adviser, not the EC, has declared the tentative time table for the election while leaving it to the EC to fix the specific polls date.
They said they did not find any provision in the constitution that empowers the chief adviser to make such a statement.
The court said the EC still does not seem to be independent of the Chief Adviser's Office, and so measures should be there to let the EC Secretariat work freely.
According to its judgment, the next parliament will look into EC's failure to hold the election in time.
The caretaker government's duty is to assist the commission in holding the polls and hand over power to peoples' representatives, it continued.
“The framers of the constitution with their wisdom and insight drafted the rules setting the time limit for holding the national election. But those provisions were not followed.”
Responding to the writ petition filed by barrister Masood Reza Sobhan, a senior lawyer of the SC, the HC on January 27 ordered the EC to explain why it shall not be directed to hold the election within the next 90 days.
It also asked the commission to show cause why its failure to hold an election within 90 days since disbanding of parliament in October 2006 shall not be declared unlawful.
Masood yesterday told newsmen that the election commissioners should resign their positions following the judgment.
He said it's quite clear that the EC has been delaying holding the election intentionally.
“They could have completed the voter list, identity cards and other processes for holding the polls much before. But they killed time to make sure the election cannot be held before December this year,” he added.
Shahdeen Malik, counsel for the EC, on the other hand, placed stress on the HC's observation that the decision to hold the parliamentary election in December is reasonable.
He said whether to file an appeal with the apex court against the judgment would be decided later.
Earlier on April 30, the court asked the polls body to inform it through affidavit when it would have the voter list ready and hold the next parliamentary election.
The EC in its statement to the court did not mention any specific date for election.
It said it would hold a free, fair and acceptable election by the year-end, and announce the election date in due course.
The statement also informed the court that over 6.41 crore people have been registered as voters as of May 2.