The New Nation - Internet Edition

Staff Reporter

Eminent jurist and counsel for the Election Commission Dr Kamal Hossain yesterday opined that that in exercise of its power under writ jurisdiction the High Court cannot embark on resolving a political question.

The rule hearing of the writ on the impugned action of the Election Commission before the High Court bench of Justice Mirza Hussain Haider and Justice Mamnoon Rahman remained inconclusive for the seventh day yesterday, keeping the EC in anxious waiting with its plan of electoral dialogue with the BNP.

Citing three-count legal principles, Dr Kamal said it was settled that the High Court in exercise of writ jurisdiction cannot act as an appellate forum for deciding a question that involves interpretation of party constitution on the internal affairs of a political party.

Secondly, he contended, it was also settled that the High Court in exercise of its power under writ jurisdiction does not embark on resolution of political question, having regard to the lack of judicially discoverable and manageable standards for resolving such a question.

Thirdly, it was settled that the summary procedure of writ jurisdiction was not appropriate for adjudication of issues involving disputed question of fact, which requires consideration of evidence and contested factual issues, he argued.

Dr Kamal submitted that the affidavits filed by the respondents found material facts disputed. Under the circumstances, the court, to adjudicate on these, would need to hold an investigation on the basis of evidence, which it cannot do in the writ jurisdiction.

Dr Kamal further argued that the issue in question involving internal proceedings of a political party could be resolved by those involved in this dispute, or by an appropriate court based on evidence.

He told the court that the Election Commission (EC) had already complied with the High Court's interim order canceling the scheduled November 22 meeting with Maj (retd Hafiz Uddin Ahmed on electoral reforms. "Thus the writ petitioner had already obtained full relief."

Since the meeting for the Nov 22 dialogue had been cancelled, it would be a futile exercise to pass any declaration that the Nov 5 EC letter of invitation for dialogue is of no legal effect, Dr Kamal said. The date on which the meeting was to be held is a long past, he added.

Dr Kamal, also Gono Forum president, submitted that the direction sought to be given to the EC for inviting Khandaker Delwar Hossain to a meeting for dialogue on Nov 22 would similarly be an infructuous exercise.

Earlier, TH Khan, the counsel for BNP chairperson, opposing Dr Kamal Hossain, submitted that it is very risky to define for the jurists and judges what is pure political question of disputed fact. There is no such element in the writ petition, he said, so it can come under judicial review.

"Our case is very simple and clear…we have challenged the validity of the decision of the Election Commission and its action that caused political leadership dispute in BNP," Khan told the court.

"We have come here with a complaint that the EC has done wrong," he went on, adding that the High Court in exercise of its writ jurisdiction can resolve the issue as it has wide ambit of jurisdiction.

He said that his client, although a political party chief, has not come here seeking remedy for solving any political issue.

The court resumes tomorrow.

Counsel of expelled BNP Secretary General Abdul Mannan Bhuyian Barrister Masod Reza Sobhan and acting secretary Maj (Retd) Hafiz Uddin Ahmed's counsel Dr Shadeen Malik, among others, were present during the hearing.