HC can't embark on resolving political questions: Dr Kamal
Wednesday, 12 March 2008
Sticking to his guns against maintainability of the writ of detained BNP chairperson Khaleda Zia, eminent jurist Dr Kamal Hossain, counsel for the Election Commission (EC), Tuesday held that in exercise of its power under writ jurisdiction the High Court (HC) cannot embark on resolving a political question.
The rule hearing of the writ on the impugned action of the EC before the HC bench of Justice Mirza Hussain Haider and Justice Mamnoon Rahman remained inconclusive for the seventh day Tuesday, keeping the EC in anxious waiting with its plan of electoral dialogue with the BNP, reports UNB.
Citing three-count legal principles, Dr Kamal said it was settled that the HC in exercise of writ jurisdiction cannot act as an appellate forum for deciding a question that involves interpretation of party constitution on the internal affairs of a political party.
Secondly, he contended, it was also settled that the HC in exercise of its power under writ jurisdiction does not embark on resolution of political question, having regard to the lack of judicially discoverable and manageable standards for resolving such a question.
Thirdly, it was settled that the summary procedure of writ jurisdiction was not appropriate for adjudication of issues involving disputed question of fact, which requires consideration of evidence and contested factual issues, he argued.
Dr Kamal submitted that the affidavits filed by the respondents found material facts disputed. Under the circumstances, the court, to adjudicate on these, would need to hold an investigation on the basis of evidence, which it cannot do in the writ jurisdiction.
He further argued that the issue in question involving internal proceedings of a political party could be resolved by those involved in this dispute, or by an appropriate court based on evidence.
He told the court that the EC had already complied with the HC's interim order canceling the scheduled November 22 meeting with Major (retd) Hafiz Uddin Ahmed on electoral reforms. "Thus the writ petitioner had already obtained full relief."
Since the meeting for the Nov 22 dialogue had been cancelled, it would be a futile exercise to pass any declaration that the November 5 EC letter of invitation for dialogue is of no legal effect, Dr Kamal said. The date on which the meeting was to be held is a long past, he added.
Dr Kamal, also Gono Forum president, submitted that the direction sought to be given to the EC for inviting Khandaker Delwar Hossain to a meeting for dialogue on Nov 22 would similarly be an in fructuous exercise.
The court resumes today (Wednesday).
The rule hearing of the writ on the impugned action of the EC before the HC bench of Justice Mirza Hussain Haider and Justice Mamnoon Rahman remained inconclusive for the seventh day Tuesday, keeping the EC in anxious waiting with its plan of electoral dialogue with the BNP, reports UNB.
Citing three-count legal principles, Dr Kamal said it was settled that the HC in exercise of writ jurisdiction cannot act as an appellate forum for deciding a question that involves interpretation of party constitution on the internal affairs of a political party.
Secondly, he contended, it was also settled that the HC in exercise of its power under writ jurisdiction does not embark on resolution of political question, having regard to the lack of judicially discoverable and manageable standards for resolving such a question.
Thirdly, it was settled that the summary procedure of writ jurisdiction was not appropriate for adjudication of issues involving disputed question of fact, which requires consideration of evidence and contested factual issues, he argued.
Dr Kamal submitted that the affidavits filed by the respondents found material facts disputed. Under the circumstances, the court, to adjudicate on these, would need to hold an investigation on the basis of evidence, which it cannot do in the writ jurisdiction.
He further argued that the issue in question involving internal proceedings of a political party could be resolved by those involved in this dispute, or by an appropriate court based on evidence.
He told the court that the EC had already complied with the HC's interim order canceling the scheduled November 22 meeting with Major (retd) Hafiz Uddin Ahmed on electoral reforms. "Thus the writ petitioner had already obtained full relief."
Since the meeting for the Nov 22 dialogue had been cancelled, it would be a futile exercise to pass any declaration that the November 5 EC letter of invitation for dialogue is of no legal effect, Dr Kamal said. The date on which the meeting was to be held is a long past, he added.
Dr Kamal, also Gono Forum president, submitted that the direction sought to be given to the EC for inviting Khandaker Delwar Hossain to a meeting for dialogue on Nov 22 would similarly be an in fructuous exercise.
The court resumes today (Wednesday).