Law Analysis
Election Tribunals and local body polls
Md Nur Islam
The concept of local government entails governance from the grassroots level and participation of local people in the administrative, economic and welfare activities for ensuring overall development of a specific locality. Local government in all the developed democratic countries have been consigned to ensure law and order situation, to provide local people with some of the basic services like supply of gas, electricity, water, to resolve local disputes, and to make all sorts of arrangements for infrastructural development of a locality. There are six divisions, 64 districts, 500 upazilas, 251 pourashavas and 4451 unions in Bangladesh. The existing local government institutions are Union Parishads, which are concerned with the development of the rural areas and Pourashavas which are concerned with the development of urban areas. The activities of Union Parishad are now regulated by the Local Government (Union Parishad) Ordinance, 1983.
Bangladesh is a unitary, independent and sovereign republic. Its Constitution ensures effective participation by the people through their elected representatives in administration at all levels. The executive power of the republic is exercised by or on the authority of the prime minister. The parliament is composed of 300 members elected from individual territorial constituencies by direct election and stands dissolved on the expiration of 5 years from the date of the first meeting.
The election to the parliament is held under a non-party caretaker government headed by the Chief Adviser who takes office after the parliament is dissolved. The caretaker government stands dissolved on the date on which the prime minister enters upon his/her office after the constitution of the new parliament.
The Bangladesh Election Commission has been established in accordance with the provision of Article 118 of the Constitution. Superintendence, direction and control of the preparation of the electoral rolls for election to the office of President and to parliament and conduct of such elections vest in the Election Commission as per provision of Article 119. Delimitation of constituencies for the purpose of election to parliament is also done by the Election Commission.
The Commission is also required to perform such other functions as may be prescribed by the Constitution or by any other law. Thus the Election Commission conducts the elections of (a) Chairmen and members of Union Parishads; (b) Chairmen and female members of Upazila Parishads; (c) Chairmen and Commissioners of Pourashavas; and (d) Mayors and Commissioners of City Corporations as prescribed by the Local Government (Union Parishad) Ordinance, 1983 (Sec. 24), the Upazila Parishad Act, 1998 (Sec. 20), the Pourashava Ordinance, 1977 (Sec. 25) respectively and the concerned City Corporation Ordinances and Acts. For the purpose of election to different elective bodies, electoral rolls for each electoral area or constituency are to be prepared under the superintendence, direction and control of the Election Commission as prescribed by the Electoral Rolls Ordinance, 1982.
The Local Government (Union Parishad) Ordinance, 1983 (vide section 27) provides for appointment of a Judicial Officer for an Election Tribunal for an area to be specified by the Election Commission. Appointments are made by the Election Commission for each election excepting the parliamentary election. Sub-Section (1) of Section 26 of the Ordinance provides that “no election under this ordinance shall be called in question except by an election petition under Sub-Section (2). Sub-Section (2) reads as follows: “(2) Any candidate may make an election petition challenging the election at which he was a candidate.” Such a petition is required to be presented to the Election Tribunal within forty-five days next after publication of the names of the returned candidates in the official gazette under rule 41 in the manner prescribed as per rule 44 of the Union Parishad (Election) Rules, 1983.
The main function of Election Tribunal is trial of election petitions as per provisions of Section 29 of the Ordinance read with Rules 43-51 of the Union Parishad (Election) Rules, 1983. The rules prescribe the manner of presentation of election petitions and their disposal, powers of the tribunal etc. In disposing of election petitions, the tribunal shall give the contesting candidates an opportunity of being heard and take evidence [Sec. 29(2)]. Sub-section (3) of Section 26 of the Ordinance provides that an election petition shall be presented in such manner as may be prescribed by the Election Tribunal. The Tribunal shall, upon receipt of an election petition, give notice thereof to all the contesting candidates and such other candidates against whom any allegation, if any, of corrupt or illegal practice is made at the election to which the petition relates [Sec 29(1), Rule 49]. The Presiding Officer or other officials need not be made parties. Decision of the Tribunal is final subject to the decision of the District Judge in appeal [Sec. 29(3)]. Appeal against the decision of the Tribunal lies to the District Judge within whose jurisdiction the election in dispute was held [Sec.29(4)].
An election petition is required to be presented to the Tribunal within 45 days next after the publication of names of the returned candidates in the official gazette, either by the candidate himself or by a person duly authorised by him in writing [Rule 44(1) (2)]. The petition must accompany receipt showing deposit of prescribed amount for the cost of the petition and must set forth clearly the grounds on which the petition is filed and the relief sought [Rule 44(3) (5)]. The Tribunal shall follow the procedure for the trial of suits under the Code of Civil Procedure, 1908 (Vof 1908) except that instead of taking down the evidence of each witness in full, it may make a memorandum of the substance of the evidence of each witness and refuse to examine a witness [Rule 47].
As per rule 45, the petitioner may claim as relief only three declarations, namely:
(a) that the election of any returned candidate is void; and
(b) that the petitioner or some other person has been duly elected; or
(c)that the election as a whole is void.
The Tribunal may make any of the three declarations if it is satisfied that the result of the election has been materially affected by reason of failure to comply with, or the contravention of these rules. The Tribunal shall have all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908 (Vof 1908).
In the parliamentary election, judicial officers have no role as Tribunals. However, Article 91A of the Representation of the People Order, 1972 (PO No. 155 of 1972) provides for constituting a committee consisting of judicial officers to be known as the Electoral Enquiry Committee. This committee plays a very important role in preventing and controlling pre-poll irregularities. The committee is required to inquire into any matter or situation constituting an offence under the order or any pre-poll irregularity on the basis of information received by it, or complaints made to it or on its own initiative. The committee can ask in writing any person to appear before it and give evidence under oath and to produce any documents or objects under his control. The committee shall inform the commission of the enquiry and may make a recommendation about the action to be taken against the violators. The committee may conduct any inquiry as it deems necessary before the election is over.
Offences of corrupt practice and illegal practice are sometimes committed by or at the instance of contesting candidates materially affecting the result of the UP election. Voters are, in some cases, prevented from exercising their right of voting. Sometimes, incompetent -- even ineligible -- persons manage to get elected in such a process. The Tribunal can declare election of such a person void -- thus ensuring free and fair election.
Similarly, the Electoral Inquiry Committee can play a very important role and ensure free and fair parliamentary election by preventing election offences and pre-poll irregularities. Thus the Tribunals and the committees play very important roles in the national and the local bodies elections.
The author is a Joint District Judge now working with the Election Commission Secretariat, Dhaka on deputation.
