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January 5 Polls

Does it violate the constitution?

Shakhawat Liton
THE Supreme Court in a verdict on the CFG system has said free, fair and neutral election is one of the fundamental structures of the constitution. But the way the government is manipulating the January 5 election has raised question whether this election has gone against this basic structure of the constitution.
In a compromised election the ruling Awami League has ensured that their candidates win uncontested in more than half of the 300 constituencies. There are allegations of ruling AL nominees forcing rival candidates in some constituencies to withdraw. There are also complaints that the returning officers in some districts have pressed many candidates to withdraw their nomination on instructions from government high-ups.
Many candidates of HM Ershad's Jatiya Party were kept forcibly in the electoral race even after Ershad's decision to boycott the election. Returning officers rejected their applications for quitting the polls. Moreover, Ershad was kept confined in CMH since December 12 for his stance on boycotting the election.
In the Constitution's 13th amendment case verdict delivered in May 2011, then Chief Justice ABM Khairul Haque said that free, fair and neutral election is undoubtedly a basic structure of the constitution. Justice SK Sinha, who agreed with Justice Khairul Haq's judgment said, "There is no doubt that democracy is one of the basic features of the Constitution but how the country will be run by a government which is not democratically elected by the people? The Constitution abhors any system of governance other than a government which is elected by the people."
Justice Abdul Wahab Miah did not agree with Justice Khairul Haque but he unequivocally supported the then chief justice's observation on the constitution's fundamental structures. He said, "We should not confuse between two things, democracy and Parliament. Free and fair election is part of democracy and a fundamental structure of the Constitution. And Parliament is the product of democratic process through a free and fair election. So, in the absence of free and fair election, Parliament cannot have real legitimacy and cannot be said to be sovereign as well and in such Parliament, people will have no representation." In such a situation, Justice Wahab further said, they cannot be called people's representatives. He also added that parliament consisting of such members cannot be called a parliament in its true sense within the meaning of clause (1) of article 65 of the constitution, and such Parliament cannot materialise the aspirations and the dreams of our forefathers and the martyrs who sacri-
ficed their lives in the liberation struggle in 1971."
Justice Nazmun Ara Sultana, who was a member of the Appellate Division, concurred with the judgement and order passed by Justice Wahab Miah. She did not make any observation. Present Chief Justice Muzammel Hossain concurred with the judgment and order passed by Justice Khairul Haque, but he refrained from making further observation.
Justice Muhammad Imman Ali, who disagreed with Justice Haque, however said, a free and fair parliamentary election, is the fundamental basis for democracy, a basic feature of our constitution.
Jurists like Rafiq-ul Huq, Shahdeen Malik and Prof Sarkar Ali Akkas are of the view that the way the January 5 election is being held stands against the constitution's basic structure in light of the apex court's observation. The election was described by them variously as a selection, unconstitutional and legally invalid.
PM and her colleagues in the cabinet and ruling alliance have been saying that the election is being held to uphold the constitution. But if one goes through the Supreme Court's verdict, one may ask whether the constitution is being upheld or being undermined by the January 5 polls?
The government of Sheikh Hasina has used the apex court's verdict to abolish the non-partisan election time CTG by amending the constitution in June 2011. The cancellation of the CTG system allowed her government to stay in power during election. But this has generated the present political crisis centring on the parliamentary election.
BNP-led opposition alliance does not want an election with Hasina as the poll-time government head and has boycotted the January 5 polls. It has been enforcing mindless road blockade countrywide since announce of the election schedule on November 25. At least 120 people were killed in political violence in less than one month.
Despite all these, the PM and her colleagues in the cabinet and ruling alliance have been saying that the election is being held to uphold the constitution. But if one goes through the Supreme Court's verdict, one may ask whether the constitution is being upheld or being undermined by the January 5 polls?
The writer is a Senior Reporter, The Daily Star.