No decision yet on proposed changes in electoral laws

Unhappy over the slow disposal of election disputes, the Election Commission has proposed certain changes in electoral laws creating election tribunals that deal with disputes on parliamentary polls.

An Election Tribunal comprising two High Court judges be set up in the capital exclusively for trial and disposal of election cases, abolishing the present divisional level tribunals, the EC has said in a proposal to the law ministry.

The time limit for the final verdict on any election case should not be more than one year, the Commission said in its proposal sent in October last year.

The ministry is yet to take any decision on the EC proposal.

After 1996 general elections, the EC received 66 petitions. Of them, 19 cases are still pending before the High Court and the Appellate Divisions of the Supreme Court on appeal.

After the 1991 general elections, the EC received almost a similar number of cases. Sixty-one tribunals were set up with District Judges to try those.

Under the Representations of People Order (RPO), 1972 that deals with conduct of elections, the EC is obliged to refer a petition, made duly, to the tribunal within 15 days of its receipt, and the 'tribunal shall try an election petition as expeditiously as possible and shall endeavour to conclude the trial within six months from the date on which the election petition is referred to it for trial....'.

"But they were unable to dispose of election petitions within six months as they, in addition to certain circumstantial compulsions to frequently adjourn hearings on election matters, were heavily burdened with their usual load of other civil and criminal cases", an EC report says.

"Most of the petitions pending before the tribunals dragged on for years, while disposal of such petitions through trials within the term of the Jatiya Sangsad was rare."

After June 1996 parliamentary polls, the EC strongly felt that election tribunals needed to be reconstituted with the exclusive responsibility of trial and disposal of election cases. As a result, six election tribunals were set up at divisional headquarters with six district judges, exclusively for trial and disposal of election cases.

Of the 66 petitions, 47 were disposed of until December, 1999, while most of the rest 19 cases are still pending before the High Court the Appellate Divisions of the Supreme Court on appeal.

Of the 47 cases disposed of by the tribunals, 33 were not persuaded by the petitioners, 13 were contested by the respondents, and one case was disposed of exparty in the absence of the accused.

The EC report attribute the tribunals' failure to ensure speedy trials this time mainly to the 'flawed method and practice of disposal.'

Explaining the "inherent limitation" in the existing system, an EC official said, "The tribunals can hardly have continuous hearing of a petition as frequent adjournments are sought by the respondent who is usually a member of parliament".

Under Section 57(5) of the PRO, "The Tribunal shall not adjourn the trial of an election petition for any purpose unless such adjournment is, in its opinion, necessary in the interest of justice."

"Well, what can a Tribunal do when adjournments are sought on the ground that the date for hearing could not be fixed during the period encompassing 15 days prior to commencement of a parliament session, the session itself and 15 days after the prorogation of the session. In this regard, the Privileges of Members of Parliaments (Exemptions from Preventive Detention and Personal Appearance) Act, 1963 is frequently quoted by the respondent/s," the EC official said.

"The Tribunals are therefore left with only a few working days, given the constitutional obligation for the Jatiya Sangsad to meet within 60 days of the prorogation of the previous session."

According to EC sources, adjournments are also sought on various pleas like illness of respondents and their lawyers and non-availability of vital witnesses.

Trial of a case also gets prolonged if one or the other party appeals for trial of the case in another tribunal or appeals to a higher court against certain observation of the tribunal during trial of a case.

"After the trial is over in a tribunal, the defeated side usually goes to higher courts," another EC official observed.

Presently, law provides for appeal to the High Court against the decision of the election tribunal. The appeals are heard by a Division Bench comprising two judges. And as a last resort, the verdict of the HC Bench goes to the country's highest judicial body - the Appellate Division of the Supreme Court.

"So it is natural that an aggrieved candidate does not get a final verdict within a reasonable time, although the EC is convinced that the whole exercise becomes useless because the final verdict is not available even during the tenure of the parliament concerned", a top EC official said."

The Commission believes that 'the time-limit for a final decision on any election case should not be more than one year from the receipt of an allegation'.

But it is convinced that mere re-fixing the time-limit is not the answer. "The composition of the tribunal and its working station have also to be changed."

"The Supreme Court may appoint an Election Tribunal comprising two judges of the High Court Division, exclusively for trial and disposal of election petitions," the EC recommendation said. "The working place of the tribunal should naturally be in the capital where the parliament meets."

The EC mentioned some countries practising the system. These include Australia, Canada, Malayasia, Kenya and Ghana. In India, election petitions are disposed of at High Courts in state capitals.

Arguing in favour of replacement of divisional level tribunals with a central one comprising High Court judges, the EC says: Elevated status of the adjudicators may dissuade the counsels from seeking frequent adjournment of hearing on frivolous grounds, while location of the parliament and the tribunal in the same city would require minimum adjustment of the tribunal's schedules.

Arguing further, the EC report said, location of the tribunal in Dhaka instead of divisional headquarters will contribute to avoiding frequent adjournment of hearing on the plea that the principal respondent is preoccupied with parliamentary duties. "Occasions may not be rare when parliament would remain in session for a part of the day, allowing the tribunal to proceed with its business during the rest of the working hours."