The New Nation - Internet Edition

UNB, Dhaka

The High Court yesterday opined that the Election Commission violated the constitution by not holding the general election within 90 days of dissolution of parliament, opening a new front in the ongoing legal battles over the stalled polls.

Disposing of a writ petition, a division bench comprising Justices Mohammad Abdur Rashid and M Ashfaqul Islam viewed that since the 90-day timeframe is mandatory to hold the election, the Election Commission has no discretion to extend the specified time.In its comprehensive observations on the politico-electoral scenario the court said, "The responsibility of the EC is to hold election so that the caretaker government can hand over power to the new Prime Minister."

The provisions of the constitution relating to holding election are mandatory unless there are other provisions in the law. "No such provision is there," the court noted.

It also said the provisions related to election are self-executory-there is no need for any other law in this regard.

The court noted with surprise that the Chief Adviser, not the EC, declared a tentative election schedule and left it to the EC to declare the exact date. "We could not find in the constitution which empowers the Chief Adviser to make such a statement," it said.

"It is seen that the EC itself is not independent," the court noted.

"Therefore, there is an apparent need to separate the EC secretariat from the office of the Chief Adviser."

About its rule issued earlier asking the EC to explain why its inability to hold general election within 90 days of the dissolution of parliament should not be declared "unlawful", the court did not say anything about it. The court, however, said the next parliament would look into the matter.

About the rigidity of the provisions of holding election within 90 days, the court affirmed that it should be seen rigidly and "thus the constitution has been violated".

Citing article 7 of the constitution of the republic, the court said the supremacy of the constitution is the will of the people. The responsibility of the EC was to hold the election so that the elected representatives could run the country.

In its views the court stated that the responsibility of the caretaker government was to assist the EC in this regard, "but, nothing has been done".

The constitution-framers stipulated the timeframe by exercising their wisdom, the court observed, adding that the provisions of the constitution were not followed and therefore they (EC) "violated the constitution".

"The development of democracy and establishment of the rule of law are being halted due to repeated violation of constitution," the court observed.

As such, the court said if the election takes place by December this year, it could be considered reasonable.

However, the HC judges noted the EC by swearing on affidavit had stated that due to preparation for voter's registration with ID cards and availability of transparent ballot boxes, it would be December before the holding of election.

The court had no choice but to accept the statement by the EC.

The court said, "It can't be conceived that the EC would not hold the election and thereby an unelected caretaker government continue to run the country."

On January 27, the High Court, following a writ petition by Barrister Masood R Sobhan, issued a twin-rule upon the EC to explain why its inability to hold general election within 90 days of the dissolution of parliament should not be declared "unlawful".

It had also asked the EC to show cause as to why it should not be directed to hold the stalled general election within a "reasonable period" of time henceforth.