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SC finds flaw in filing appeal

Govt lawyer submits CEC approval to appeal against HC stay order on Dhaka-10 by-polls

Staff Correspondent
The Supreme Court yesterday found irregularities in filing an appeal against, the High Court's stay on Dhaka-iO by-polls where the attorney general's office presented the chief election commissioner’s (CEC) approval for lodging the appeal.
During argument on the allega-
tions of tampering with the petition, it became clear to the full bench that the advocate on record did not maintain the process in filing the appeal.
Chief Justice Syed JR Modassir Husain said the process followed in filing the appeal showed 'some irregularities'.
The court observed that the government was not a party to the
case during argument over the involvement of the attorney general's office in the petition.
The full bench of the Supreme Court led by die chief justice sits today again and the judgement is likely to be delivered as the court decided at the end of over three-hour hearing before adjournment yesterday. It also directed counsels of both sides to complete their arguments in the first two hours after court resumption at 9:00am today.
Things took a dramatic turn after yesterday's court hearing --CEC MA Syed tightened his lips and counsels of both sides shifted focuses in their arguments.
In last few days, the CEC repeatedly told The Daily Star that he neither filed the appeal nor gave permission to anyone to file it, but was tight-lipped after submission of the approval to the highest court.
In his argument, Barrister Rokanuddin Mahmud, counsel of Bikalpa Dhara Bangladesh (BDB) candidate M A Mannan, questioned the authority of the CEC to give approval for filing the appeal.
Referring to a previous Supreme Court judgment, he said the CEC could not give such permissions individually bypassing the EC, as the body was comprised of other commissioners.
Quoting the judgment that the CEC's authority was not sufficient, he also questioned the powers of the returning officer to lodge the appeal.
Before presentation of the CEC's approval, Rokanuddin raised the question of legality and transparency in filing the appeal and the attorney of warrant.
Former justice TH Khan, counsel of the appeal petitioner, termed the mistake in lodging the appeal as minor and was apparently reluctant to argue on the point after the presentation of the approval document.
He argued for holding the bypolls in 90 days after the seat fell vacant at the resignation of Mannan.
Mannan resigned from parliament and from the ruling BNP before joining the BDB.
The special bench handling the petition on Sunday referred it to the full court that heard the petition from 9:10am to 1:00pm with half an hour tea break.
Only journalists with accreditation cards were allowed to the court after two days of restriction.
When Rokanuddin argued the petition was tampered in different ways, the chief justice wanted to listen to the advocate on record?
Maulavi Wahiddulah appeared before the court himself and responded to the judges' queries on the allegation.
The chief justice asked him who directed him to change the petitioner's name.
As the advocate on record could
not satisfy the court, the chief justice asked him whether he took permission from the chamber judge before amending the petition.
Without a direct reply to the question, the advocate said he did it in front of the chamber judge, prompting chamber judge Tafazzal Islam, also a judge of the full seven-member court, to say he could not recall giving such an order.
Justice M Ruhul Amin again asked in Bangla whether Wahiddulah took permission before changing the petition, he kept from replying.
During the argument, Additional Attorney General AJ Mohammad Ali submitted the document of the CEC's approval.
Earlier, Rokanuddin said the petition first had the returning officer as the petitioner and the EC as the respondent. But later the EC was made the petitioner without permission from the chamber judge. The appeal was accepted without the warrant of attorney, he alleged.
Rokanuddin questioned if the BDB candidate could file an appeal without the warrant of attorney and had a special bench constituted for hearing.
Briefing reporters on tampering with documents after the hearing, TH Khan said: "It is not a major issue. They raised it as if it were a big fraud."
He claimed Rokanuddin could not properly reply to the arguments he raised.