In its full verdict on Bangladesh Jamaat-e-Islami’s registration released on Saturday, the High Court observed that the Election Commission had not registered the party in 2008 “lawfully” and its charter contained elements contrary to the constitution and the election rules.
It also said Jamaat had no moral right to do politics in Bangladesh for the atrocities it had committed during the 1971 Liberation War.
Jamaat’s counsel Belayet Hossain told the Dhaka Tribune that the party would appeal with a full bench of the Appellate Division after getting certified copy of the full verdict.
Election Commissioner Abu hafiz said there was no scope disobey the High Court verdict. “We will immediately implement the decision after getting the certified copy,” he told the Dhaka Tribune.
In the short verdict delivered on August 1, the court cancelled Jamaat’s registration “by majority view.”
On August 5, the chamber judge rejected a plea by Jamaat seeking a stay order on the High Court verdict.
The former EC, led by ATM Shamsul Huda, gave Jamaat registration only days ahead of the ninth parliamentary elections that held on December 29.
On January 25, 2009, challenging the EC’s decision, Syed Rezaul Hoque of Tariqat Federation and 24 other individuals filed a writ petition seeking the court’s order to cancel Jamaat’s registration saying that several provisions of its charter had been contrary to the county’s constitution and the RPO.
The judgement says: “Jamaat and EC time and again argued that the registration was provisional but we could not find any provision in the RPO [Representation of the People Order] to accord provisional registration and on the other hand in the ‘registration certificate’ itself there is no such stipulation that it is a provisional certificate.
“The stipulation was that complying with the mandatory requirements, for example article 90C, with a provisional constitution, a political party may be registered subject to making it compliant within six months [later the time limited extended to 12 months by amending the RPO in parliament]."
“The relevant provision very clearly stipulated that the EC neither had the authority to register Jamaat with such a non-compliant charter, nor did it ever had the authority to request Jamaat to amend its constitution to make it compliant since its registration from its inception was done without any lawful authority.”
The judgement concludes: “In the result, the rule is made absolute. It is hereby declared that the registration of Jamaat given to it by the Election Commission on November 4, 2008 was done without lawful authority and is of no effect.”
It is learnt that Justice M Enayetur Rahim and Justice Quazi Reza-Ul Hoque had favoured cancelling Jamaat’s registration, while Justice M Moazzam Husain directed the EC to dispose of the matter in accordance with the law.
Justice Moazzam said though the party had not any moral right to do politics for its reprehensible role in the Liberation War, the High Court had no authority to rescind its registration, saying that only the EC could do so.
Following the short verdict, the chief election commissioner said: “As per the election laws, if a party’s registration is cancelled no one can participate in the elections using that party’s symbol. The party members can, however, take part in the polls as independent candidates. But they will not be able to join any alliance.”
The EC did not allow Jamaat to contest in Barguna 2 by-polls held on October 3.
Following the 2009 petition, a two-member High Court bench on January 27 issued a rule asking the EC to explain why Jamaat’s registration should not be declared “ultra vires” to the constitution.
In reply, the EC had admitted that some provisions of Jamaat’s charter were against the country’s constitution and the RPO. But Jamaat claimed that the EC had not done anything illegal by registering the party.
After Jamaat had got registration, the EC issued a total of five letters asking it for amendments to the charter constitution so it could fully continue operating as a political entity.
At the time of registration, Jamaat’s Legal Affairs Secretary Jasim Uddin Sarker agreed to erase six sections of the charter which the EC had identified as against the constitution and the RPO. He then submitted a charter penning through the inconsistent words and sentences in red ink and promising to drop them from the final document. But the printed charter that was eventually placed with the EC contained many of the words and sentences that were inconsistent with the country’s constitution.
The party also changed its name to Bangladesh Jamaat-e-Islami before the polls. Earlier, “Bangladesh” was put at the end of the name.
On December 4 last year, Jamaat submitted a printed charter (49th edition) to the current Kazi Rakibuddin Ahmad-led EC.
In the full verdict, the judges criticised the EC for giving Jamaat scopes to submit a provisional charter and several deadlines to comply with the RPO. The judges said allowing a particular party with such benefits was “astonishing” and “unethical.”
The court observed that the EC and the party had communication between them over revising the charter. But as per the RPO, the EC has no authority to play the role as “guardian or adviser” of a party by sending letters suggesting revision, amendment or inclusion. It is proved that the EC had been engaged in “unlawful” activities by allowing the party for years to rectify Jamaat’s charter. “Such activity is called ‘fraud on the statue’ in legal terms.”
Though Jamaat has changed its name several times, the judgement said: “Its name Jamaat-e-Islam originates from British India followed by its existence in Pakistan and it is the same old product bottled in a new bottle under a new emblem almost with the same persons those who were in the fore-front against the independence of Bangladesh and fought against the liberation forces of Bangladesh.”
The war crimes tribunal’s investigation agency has begun probe into Jamaat’s involvement in war crimes as a party.
Several Jamaat leaders including its former chief Ghulam Azam, treated as the kingpin of collaborators, have been sentenced by the war tribunal for their involvement in crimes against humanity.