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IN the MATTER of Jatiya Party ……….Appellant -V IN THE SUPREME COURT OF BANGLADESH APPELLATE DIVISION (CIVIL JURISDICTION) IN THE MATTER OF Jatiya Party ……….Appellant -VERSUS- Election Commission for Bangladesh and others ……..Respondents Mr. Syed Ishtiaque Ahmed, Senior Advocate (Mr. Amir-ul Islam and Mr. Rokanuddin Mahmud, Senior Advocate, with him), instructed by Mr. Sharifuddin Chaklader, Advocate-on- Record …For the Appellant Mr. Rafiq-ul-Huq, Senior Advocate, instructed by Mvi Md Wahidullah, Advocate-on- Record …For Respondent No. 6. Mr. Walilul Islam, Adocate-on-Record …For Respondent Nos. 1-3. Not represented …Respondent Nos. 4-5. Mr. Mahmdul Islam, Attorney-General- Amicus Curiae. Judgment: November 30 th , 2000 Present: Mr. Chief Justice Latifur Rahman Mr. Justice M Amin Chowdhury Mr. Justice Kazi Ebadul Hoque And Mr. Justice M Reza Chowdhury Latifur Rahman CJ: This appeal by the writ-petitioner-appellant is against an order dated 9-3- 2000 passed by a Division Bench of the High Court Division summarily rejecting Writ Petition No. 1153 of 2000. Jatiya Party represented by its Secretary General Anwar Hossain Manju had impugned an order dated 23-2-2000 passed by respondent No. 2 awarding the symbol “Langol” to Jatiya Party faction headed by Mr. HM Ershad for all by-elections for the present Parliament referring to Article 20(I), 61(b) of the Representation of the People Order, 1972 and Rule 9(1) of the Conduct of Election Rules, 1972 being the existing legal provisions for allocation of symbols in the parliament election. The symbol “Langol” was reserved for Jatiya Party by the Election Commission. In Meherpur-1, by-election one Motassim Billah, a candidate of Jatiya Party requested for allocation of symbol “Langol” and as there was no other candidate of Jatiya Party, The Returning Officer by order dated 19-4-1999 refused to allocate the said symbol “Langol” to him and allocated the symbol “Butterfly” for the said by-election, a symbol reserved for independent candidate whereupon Writ Petition No. 1318 of 1999 was filed before the High Court Division and the Rule was made absolute on 23-4-1999 directing the Returning Officer to allocate the symbol “Langol” as a candidate of Jatiya Party. In an appeal before the Appellate Division, the Appellate Division by a judgment dated 17-11-1999 in Civil Appeal No. 44 of 1999 allowed the appeal setting aside the order of the High Court Division. Meanwhile Faridpur-4 by-election was held on 27-10-1999 wherein the two rival candidates from Jatiya Party were allocated the symbol “Lotus” to the candidate of the appellant and “Langol” to the candidate of respondent No. 6 despite the fact that there was a letter before the Returning Officer from the appellant requesting allocation of symbol “Langol” stating that he was a candidate of the appellant. The said candidate not having been allocated “Langol” as its symbol filed Writ Petition No. 3933 of 1999 which was summarily rejected holding the same to be election dispute. Respondent No. 5 on 4-11-1999 filed an application before the Election Commission for reviewing the order of the Returning Officer allocating the symbol of “Full Pant” for Tangail-8 by-election instead of “Langol”. The Chief Election Commissioner (Acting) by order dated 23-2-2000 more than three months after the Tangail-6 by-election passed the impugned order holding that respondent No. 6 Hossain Mohammad Ershad is the leader of the Jatiya Party in the Parliament headed by him and hence the symbol “Langol” is due to the party headed by him and the order shall be followed in any by-election in the present Parliament. The appellant further asserted that in the council meeting of Jatiya Party Mr. Mizanur Rahman Chowdhury and Mr. Anwar Hossain Manju were re- elected as the Chairman and General Secretary respectively which were attended by most of the members of the parliament belonging to Jatiya Party. The appellant’s party existed on 12-6-1996 when they were sitting Chairman and General Secretary respectively. The appellant has further asserted that the candidate contesting the by- election of Tangail-8—earlier filed a review petition before the Election Commission and the Election Commission by election dated 31-10-1999 held that there was no scope to review the order of the Returning Officer regarding the allocation of a symbol “Langol”. In this appeal, leave was granted to consider the submission of the learned advocate for the writ-petitioner-appellant as to whether the High Court Division acted correctly in holding that Acting Chief Election Commissioner is not corum non judice in exercising the powers which is vested in the Election Commission inasmuch as Article 118 of the Constitution read with the provision of the said Order makes it clear that the power of the Election Commission can only be exercised by it, and not by any of its members alone. Leave was also granted to consider the submission of the learned Advocate as to whether the High Court Division was correct in holding that the Election Commission was not acting judicially and it was not a quasi judicial body, and it was acting in its administrative capacity. The Election Commission has been established under Article 118(1) of the Constitution of the People’s Republic of Bangladesh which reads as follows: “118 there shall be an Election Commission for Bangladesh consisting of a Chief Election Commissioner and such member or other Election Commissioners, if any, as the President may from time to time direct, and the appointment of the Chief Election Commissioner and other Election Commissioners (if any) shall, subject to the provisions of any law made in that behalf, be made by the President.” Thus it appears that the Election Commission which shall consists of a Chief Election Commissioner along with other Election Commissioners as may be appointed by the President and the Commission shall be subject to the provisions of any law made in that behalf by the President. Sub-article (9) of Article 118 speaks that when the Election Commission consists of more than one person, the Chief Election Commissioner shall act as the Chairman thereof. This is about the establishment of Election Commission under the Constitution. Syed Ishtiaque Ahmed, draws our attention to Articles 3 and 4 of the Representation of the People Order. 1972 (President’s Order No. 155 of 1972). Article 3 reads as follows: “3. The Election Commission, constituted in accordance with Article 118 of the Constitution may be strengthened by appointing such number of Commissioners as may be deemed necessary.” Article 4 reads as follows: “4. The Commission may authorize its Chairman or any of its members or any of its officers to exercise all or any of its powers and functions under this Order.” In the present case the order was passed by the Acting Chief Election Commissioner alone and not be the Election Commission. The moot question is whether a member who was acting as Chief Election Commissioner can perform all or any of its powers and functions under the Representation of the People Order, 1972, briefly, the Order, without there being any authorization the Commission itself. It has been referred earlier that the Election Commission is constituted under Article 118(1) of the Constitution and it consists of a Chief Election Commissioner and such other Election Commissioners as may be appointed by the President and they, in fact, constitute the Election Commission for Bangladesh. In that sense, Election Commission is a composite body, an individual member can only act under section 4 of the Order when he is authorized by the Commission itself. In this particular case as a matter of fact there is no delegation/authorization by the Commission itself. What we find is that the Chief Election Commissioner being unwell he went on leave for treatment abroad and he verbally nominated a number to act as Acting Chief Election Commissioner. As a matter of fact, this may at best be said to be a direction of the Chief Election Commissioner to perform functions of the office in his absence as Acting Chief Election Commissioner, but for exercising and performing any powers or functions under this Order he must get authorization from the Commission itself, otherwise his action under the Order will be corum non judice and without jurisdiction. As a matter of fact the functions that the Acting Chief Election Commissioner was doing in this particular case, was a function vested in him under this Order. In the present case the controversy was with regard to allocation of symbol which the Returning Officer was authorized to do under Article 20(1) of the Order and that order was challenged before the Election Commission and the Election Commission of Bangladesh has got the power of review under Article 91(b) of the Order. Thus the Election Commission has got the authority to decide the matter. Without entering into the question as to whether the authority exercised by the Acting Chief Election Commissioner is a quasi judicial order or an order in its administrative capacity, it can be safely said that there was no delegation by the Election Commission itself to perform such function under the Order. Mr. Rafiq-ul-Huq, appearing for respondents, has placed before us Article 3A of the Order which reads as follows: “3A. Subject to the provisions of this Order, the Commission shall regulate its own procedure”. Mr. Rafiq-ul- Huq wants to argue that the Commission has the authority to regulate its own procedure. To that argument, Syed Ishtiaque Ahmed submits that for regulating its procedure the Commission must act subject to the provision of this Order.
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