Justice will not be denied forever

The EC was further directed to disseminate the information submitted by candidates to the voting public through the mass media. The purpose of this directive is to empower voters with information about candidates as the "people have a right to know and such right is included in the right to franchise."

Unfortunately, the EC, for reasons unknown, failed to implement this historic judgment fully and completely, blatantly denying the people's right to know the antecedents of their future representatives. More seriously, very recently a petition has been filed for leave (permission) to appeal against the judgment, which gives rise to serious cause for concern regarding how it might undermine the public interest.

According to Article 111 of the Bangladesh Constitution, the High Court judgment has the force of law, and the EC has the solemn duty to judiciously and effectively implement both the letter and intent of it in order to help voters make informed choices during elections. Unfortunately, not only has the EC failed to fully and completely implement the judgment, the Chief Election Commissioner, as the head of the EC, has been instrumental to a misinformation campaign against it. It must be noted that Article 112 of the Constitution enjoins all authorities, executive and judicial in the Republic to act in aid of the Supreme Court.

Six by-elections -- in Narsingdhi, Sunamganj, Faridpur, Dinajpur, Manikganj, and Gaibandha -- have been held since the High Court judgment. There were also elections to the reserved women's seats. The EC has made only a feeble effort since the Sunamganj-1 by-election to implement the judgment.

For example, it issued a circular with a pro-forma of an affidavit, asking the Returning Officer (RO) of Sunamganj to collect the information from the candidates and disseminate them through the mass media. Similar circulars were issued during the other by-elections and elections of the women's seats. However, the affidavits were not made public, although a summary of the information submitted by candidates was made available. The EC also did not make public the statements containing information about the candidate's sources of election expenses, assets and liabilities, annual income and expenditure, and copies of his/her income-tax return submitted by candidates under section 44AA of The Representation of People of Order (RPO) 1972.

We, as a coalition of concerned citizens committed to upholding voters' rights, formally asked for the copies of the affidavits and other statements, but never received them, although the EC is legally obligated under sec. 44D(2) of the RPO to provide them. Neither the Returning Officers nor the EC even bothered to reply to our written requests. More importantly, the EC took no action against candidates who submitted false or misleading information or concealed information despite serious allegations of such wrongdoing by candidates.

More seriously, the CEC took the position that the said High Court judgment is directory rather than mandatory since there was no consequence for failure to comply provided in the judgment. What this contention appears to mean is that even if the candidates do not file affidavits or provide erroneous, incomplete or misleading information, their nomination papers would still be valid. This would appear to amount to making the submission of affidavits optional.

According to experienced jurists, Court judgments are directory only in the cases of interpretation of statues. Even in interpreting statues, Courts can make it mandatory for the concerned parties to accept and implement their findings by inserting "shall" and providing for adverse consequences for non-compliance. If the Court does not do so, the interpretation is directory. On the other hand, all other Court decisions are binding on the parties to the proceedings and are thus mandatory. Mandatory decisions can be enforced through execution proceedings or through contempt proceedings.

Clearly, the EC, if it wanted to, could fully and aggressively implement the High Court judgment requiring disclosures. It is a constitutional body created to hold free, fair and impartial elections, and Article 119 of the Constitution gives it a reservoir of powers to do so.

As the Appellate Division of Bangladesh Supreme Court, in Altaf Husssain vs Abul Kasem (45DLR(AD)(1993)) observed: "Election Commission's inherent power under the provision of 'superintendence, control and direction' should be construed to mean the power to supplement the statutory rules with the sole purpose of ensuring free and fair elections." Thus, the question that now haunts many citizens is: why is the EC so blatantly undermining the public interest?

Not only has the EC failed to fully implement it, we have just discovered that there was a recent petition for leave to appeal by one Md. Abu Safa against the above High Court judgment. The petition, according to the newspaper report, was heard by the Appellate Division on April 6, and the leave was granted.

Mr. Safa filed the appeal on the ground of discrimination. He claimed that he could not pursue his education beyond class VIII, although he is a self-educated person. He further claimed that he is a popular and credible leader in his constituency and intends to contest in the upcoming parliamentary election. He reasoned that disclosures of his educational qualifications, as mandated by the High Court, will result in discrimination against him and thus the disclosure will "impair the basic structure of democracy and Article 66 of the Constitution."

The High Court judgment of May 24, 2005 does not ask the voters to vote against the less educated, it simply requires disclosures so that voters can make informed decisions. Such disclosures, according to the Indian Supreme Court, protect the voter's right to speech and expression:

"Voter's (right to) speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be elected is a must. Voter's right to know antecedents including criminal past of his candidate contesting election for MP or MLA is much more fundamental and basic for survival of democracy. The little man may think over before making his choice of electing law-breakers as law-makers."

Similarly, the disclosures of educational qualification would enable the voter to make an informed choice among candidates -- that is, whether he or she wants to vote for a more formally educated or more informally educated person. Thus, the disclosures, mandated by the High Court, will only strengthen democracy, not impair its basic structure -- whatever it means, as claimed by Mr. Safa.

For democracy is the governance with the consent of the people, and without the informed consent of the citizens it will rather be weakened.

It must also be noted that the very purpose of disclosures is to allow the voters to discriminate -- in a positive sense -- and select candidates based on their antecedents. How are they otherwise going to make choices given various alternatives? Besides, in elections voters choose lawmakers, thus candidates' education and experience are certainly relevant. It is thus clear that the "discrimination" mandated by the High Court judgment based on antecedents of candidates will promote democracy instead of hampering it.

The whole episode involving half-hearted efforts of the EC to implement the High Court judgment, the CEC's contention that the judgment is not mandatory, and the circumstances of filing the petition for leave to appeal represent deliberate attempts to undermine public interest, and they have serious implications.

James Harrington in his The Commonwealth of Oceana said: "The law is but words and paper without the hands and swords of men." That is, where law fails to deliver justice, hands and swords take over. And where the law is unable to protect public interest, the rule of the sword gets its way. That is when anarchy begins. This is the accumulated wisdom of human history. Are we heading that way?

Dr. Badiul Alam Majumdar is Secretary, Shujan.