SHAFIQUAL AZAM KHAN VS ELECTION COMMISSIONER 65 DLR HCD 2013

 

Analysis of the Fact:

Petitioner was the mayor of Moshesh Pur Paurashava, Jhenidah. During his incumbency as Mayor the schedule of election of 9^th parliament was declared. The petitioner with a view to contesting the election from Jheniadah 3 submitted his nomination paper. Another candidate raised objection alleging that petitioner as a mayor holding an office of profit and thus was disqualified to contest the election as per article 12(1) (c) of the Representation of the People’s Order, 1972. The objection was rejected. The election was held and the petitioner was elected as a Member of Parliament. The Commission after eight months of oath taking ceremony issued the impugned notice asking the petitioner as why a gazette shall not be published declaring him disqualified to be a member of parliament.

Issue:

1.      Whether the Election Commission has any authority to determine the pre and post election disqualification of a candidate of the parliamentary election?

2.      Whether the office of Mayor of Paurashava is an office of profit or not ?

Argument from the petitioner:

It was argued that

v  The office of the Paurashava Mayor is not an office of profit. The Election Commissioner treated the office of Paurashava Mayor as an office of profit comparing it with the office of mayor of City Corporation held by High Court Division. Treating an elective office by an office of profit by analogy is beyond the jurisdiction of the Commission. It is virtually tantamount to usurpation of the legislative power of parliament and the power of the Supreme Court to interpret the law. Article 66(2)(f) and (3) of the constitution and Article 12(1)© of the RPO and section 19(2) of Local Government (Paurashava) Ordinance,2008 suggest that Mayor of Paurashava is not an office of profit. 

v  According to Article 66(4) of our constitution, the commissioner is not competent to address such a notice to a sitting MP unless there is a reference made on that behalf by the Speaker.

 

Argument from the Respondent:

It was argued that 

Ø  The proceeding is still pending before the commission to settle issue of disqualification of the petitioner to be a member of parliament and petitioner was also active in the proceeding. So, the rule is premature and liable to be discharged.

Ø  Under article 152(1) of constitution and article 2(XXIIIA) of RPO  Paurashava is a statutory public authority. Under article 12(1) of RPO office of profit means holding any office, post or position in the full time service of the Republic or any statutory public authority or company in which Government has 50% share. Under Local Government (Paurashava) Ordinance, 2008 office of a Mayor of a Paurashava can fairly be said to be an office of profit. Therefore, the petitioner was disqualified from being elected or to be a member of parliament under Article 66(2) of our constitution.

Decision:

The commission in initiating the proceeding and issuing the notice has clearly overstepped its jurisdiction and all the notice and connected proceedings are declared to have been issued without any lawful authority.

Reasoning behind the decision:

The above decision was taken on the following grounds:

§  According to article 66(4) of our constitution, the commissioner has a jurisdiction to take cognizance of a dispute touching upon the post election disqualification of an MP but the jurisdiction is subjected to a reference to be made by the speaker according to rule 178 of Rules of Procedure.

§  The commission is left with no power to question the right of an MP to his office by reference to his pre election disqualification.

§  Since article 66(2) expresses that person suffering from disqualification shall not be eligible to be elected or being as Member of Parliament. So, nothing can prevent a person from seeking quo warranto in the public interest regarding his pre election disqualification if that is still continuing.

§  Article 12(1)© does not say that office of Mayor of a Paurashava is an office of profit. In absence of any express provision of law or decision of a competent court. An interpretation of law by commission is not only beyond its power but also unknown to law.

§  The right of a citizen otherwise disqualified to contest the parliamentary election and to remain as member can not be questioned or taken away by the election commission by resort to any mean without any provision of law.

Principle:

In case of absence of any clear provision in any law regarding any issue no authority other than the competent court can interpret it.

Importance of this case:

In this case the jurisdiction of Election Commission was elaborately discussed. Election Commission can take cognizance of dispute touching upon the post election disqualification subject to a reference to be made by the speaker as per the provision of article 66(4) not by a reference to his pre election disqualifications. Regarding the point whether the office of a  Paurashava Mayor is an office of profit or not it was decided that it was the matter of interpretation of law because article 12(1)© of Local Government (Paurashava) Ordinance, 2008 does not say whether it was a post of profit o not and court has the only power to interpret that laws not the election Commission does not have that power.