LEX/BDHC/0011/1992

Equivalent/Neutral Citation: 44 DLR (1992) 354

IN THE SUPREME COURT OF BANGLADESH

(HIGH COURT DIVISION)
Writ Petition No. 2195 of 1991
Decided On: 18.02.1992
Abdus Samad Azad and others Vs. Bangladesh through the Secretary, Ministry of Law &
Justice and others
[Alongwith Writ Petition Nos. 2213 and 2238 of 1991]
Hon'ble Judges/Coram:
Anwarul Hoque Chowdhury, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Amir-ul-Islam with Zakir Ahmed, Md. Nurul Huda and
Shirin A Choudhury - For the Petitioner in WP No. 2195 of 1991 and Moudud Ahmed -
Petitioner in person in WP Nos. 2213 and 2238 of 1991
For Respondents/Defendant: Aminul Huq, Attorney-General with A.F. Hassan Ariff,
Deputy Attorney-General, Obaidur Rahman Mustafa and Mokbul Ahmed Assistant
Attorney-General
JUDGMENT
Anwarul Hoque Chowdhury, J.
1. Writ petition No. 2195 of 1991 filed by Abdus Samad Azad and 6 other members of
the Parliament and Writ Petition Nos. 2213 of 1991 and 2238 of 1991 both filed by
Moudud Ahmed also a member of the Parliament are taken up together as they arose
out of the same subject-matter and the cause of action in this matter are similar. The
petitioner in those petitions under Article 102 of the Constitution of the People's
Republic of Bangladesh moved by Abdus Samad Azad and 6 other Members of the
Parliament namely, Suranjit Sen Gupta MP, Tofael Ahmed MP, Mrs. Matia Choudhury MP,
Rahmat Ali MP, Md. Nasim MP and Prof. Abdul Hafiz MP prayed for issuance of a Rule
calling upon the respondents to show cause as to why the impugned legislation namely,
the President's Election Act. 1991 known as Act No. 27 of 1991 should not be declared
to be void being inconsistent with the provision of the Constitution and should not be
declared to have been passed without lawful authority and thus of no legal effect.
2. The two writ petitions filed by Mr. Moudud Ahmed, a Member of the Parliament, also
pray for issuance of Rules calling upon the same respondents as above to show cause
as to why the President's Election Act, 1991 being Act No. 27 of 1991 and the
President's Election Rules, 1991 made by the Chief Election Commissioner should not be
declared to be void being inconsistent with the provision of the Constitution and should
not be declared to have been passed without lawful authority and thus of no legal
effect.
3 . These 3 writ petitions were moved in motion before a Division Bench of this Court
consisting of Fazle Hossain Md. Habibur Rahman and Abdul Hasib JJ and the said
Division Bench after hearing the matter at length was not unanimous as to whether a

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 rule should be issued and a consequent show cause notice as prayed for. Fazle Hossain
Md. Habibur Rahman J the Senior Judge of the Bench for reasons stated in his Judgment
dated 25.11.91 rejected all the 3 writ petitions summarily holding that section 4 of Act
27 of 1991 is a proper valid piece of legislation and the election of the President held in
accordance with the said provision and other provisions of Act 27 of 1991 is valid and
legal and found, therefore, no substance whatsoever in the contention made in the 3
writ petitions and thereby rejected those summarily. Abdul Hasib J, however, held
otherwise and by a separate judgment Hasib J came to a finding that these Writ
petitions did make out a case which involves a substantial question as to the
interpretation of the provision of the Constitution and requires examination and in that
view of the matter, the learned Judge considered that the Rule Nisi be issued in those
two writ petitions one filed by Abdus Samad Azad and 6 other Hon'ble Members of the
Parliament and the other by Mr. Moudud Ahmed. Accordingly, the said judgment
directed that a Rule Nisi be issued in Writ Petition No. 2195 of 1991 and Writ Petition
No. 2213 of 1991 calling upon the respondents to show cause.
4 . The Division Bench having failed to come to an agreement as to this question of
issuing a rule or otherwise the matter was directed to be placed before the learned Chief
Justice for an appropriate order and the matter was thereafter placed before the learned
Chief Justice and by the order of the learned Chief Justice dated 14.1.92 it was placed
before this Single Bench as a Third Bench for a final hearing, which is heard in great
details. The learned lawyers of both the petitioners and the State represented by the
learned Attorney-General made very commendable efforts in assisting the Court in this
matter and these two Writ Petitions are disposed of today by this Single Judgement and
the other Writ Petition filed by Mr. Moudud Ahmed challenging the venue of the election
of the President directed to be in a Chamber of the President having been rejected by
the former Division Bench per quorums is not before this Single Bench for any decision.
5 . Mr. Amir-ul-Islam, the learned Counsel, having taken me through the impugned
legislation, the relevant Articles of the Constitution, the averments made in the Writ
Petition calling for a rule and the opinion of some of the jurists in this regard and also
some decisions of the Courts of Bangladesh and also of American Jurisdiction submitted
before this Court at great length that section 10 of Act. 27 of 1991 provides that the
election of the post of President shall be by open ballot by the Members of the
Parliament, each member of the Parliament having one vote, is ultra vires of the
Constitution because it is violative of the Constitution of the People's Republic of
Bangladesh being derogatory to the freedom of thought and conscience as expressed
and guaranteed under Article 39 of the Constitution (Ground No. 1 and 1(a) in the Writ
Petition). It also tends to destroy the democratic process and the democratic policy as
envisaged in the preamble of the Constitution of Bangladesh and it also come into
conflict with Article 11 of the Constitution preventing the effective participation in the
administration of Government by the people through their elected representative. It also
offends against Article 7 of the Constitution which provides that all powers belonged to
the people but this system of voting directly prevents the people's representative by
threat and intimidation of punishment from exercising their part freely and without
hindrance as envisaged under Article 7 of the Constitution. It also, according to the
learned Counsel, destroys election as a concept as contemplated under the Constitution
of People's Republic of Bangladesh which according to the learned Counsel has
converted an election to mere selection, at the instance of one person and one quarter
which is repugnant to the concept of democracy and of free election. The fundamental
rights of the Members of the Parliament to exercise their choice has been violated. The
Act is a malafide piece of legislation and it has been enacted for collateral purposes.
The impugned Act has been enacted at a very critical moment of this nation's history

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 while it is moving from autocracy to democracy, from Presidential to Parliamentary form
of Government and it was enacted in order to force the member of the Parliament to
vote not according to the dictates of his own conscience but at the order of the leader of
the party. It has made a member of the Parliament thereby the parliament itself into a
rubber stamp and there is a total denial of free exercise of franchise. It is the further
contention of the learned counsel that Article 70 of the Constitution had already put in a
self-imposed restriction on the power of the members of the Parliament to vote in the
Parliament and that restrictions cannot by reasons of political expediency be extended
further to election of President by the members of Parliament thereby adding a liability
not contemplated under Article 70 of the Constitution. It is the further submission that
there is no immediate standard of secrecy of the Hon'ble members and so-called open
voting making them vulnerable to all kinds of threat which is a denial to free exercise of
franchise. It has been further submitted by the learned counsel that the preamble of the
Constitution of the People's Republic of Bangladesh which ought to be taken as a
guideline even in the interpretation of the provision of the Constitution clearly envisages
a democratic political society and a democratically elected government thereby making
it incumbent upon the legislature to refrain from making any legislation which will come
into conflict with the concept of democracy as known to people and the concept of
voting as known to ordinary people while choosing their representative essential for a
democratic government by means of a secret ballot.
6. Mr. Aminul Huq, the learned Attorney-General appearing for the State supporting the
judgment delivered by Fazle Hossain Md. Habibur Rahman, J summarily rejecting the
petition, submitted that the right of voting is not a fundamental right. It is nowhere
guaranteed in the Constitution but it is a right given by statute and having been
guaranteed by statute it need be regulated by the Statute. He further submits that the
Constitution of the People's Republic of Bangladesh postulates party system. Political
parties are essential for the proper functioning of the democracy, without political party
democracy cannot function and the will of the people is expressed through candidates
or parties in Parliament and party should get priority above all in public affairs. It is
further submitted that the Member of the Parliament is a different political entity than
the general electorate, a Member of the Parliament is bound by a party mandate and the
Member of the Parliament is to act according to the party dictates which is the
conscience of the party and not always of its individual members and it is this will of
the people as mentioned in the preamble and also in Articles 7, 11 and 25. It is always
expressed through the party and in Parliament by its party representative and according
to him the electors who voted for members of a particular political party from a
particular electoral area has a legal right to know what their representatives in
Parliament are doing in making the law or in selecting the President as their
representative and therefore the voting system as in section 10 of the Act 27 of 1991
which speaks of open voting is not violative of either of the preamble or Article 11 or
Article 7 of the Constitution because the public has a right to know for whom their
representative had voted. The learned Attorney-General further submits that the power
of the members of the Parliament to elect the President is a duty imposed upon the
members of the Parliament by the Constitution itself under Article 48. Article 48 is an
additional power on top of his legislative power and there are other special powers and
duties too, namely the right to impeach the President by openly voting in Parliament,
the right to elect the Speaker and the Deputy Speaker which is by open ballot as in the
Constitution and the right and duty to elect its own leader in the house and when there
is a dispute by open division therefor. There is thus no uniformity of voting procedure.
Both the systems, secret and open ballot, are regarded to be the systems of voting and
the law chooses sometimes one system in preference to the other and it is a matter of
political expediency and matter of convenience and the necessity of the particular

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 occasion for providing so. He has further submitted that a close analysis of Act 27 of
1991 relating to the election of the President would show that it is not wholly an open
ballot rather there is a secrecy because it is only known to the Election Commission,
who would be counting the votes and would know if be chooses to examine a particular
ballot paper and the Election Commission is not legally bound to disclose this pattern of
voting to outsiders or even to leaders of the House or other voters. So the contention of
illegal exposure is not correct He further submits that the history of the Act would show
that the legislature intentionally omitted to refer to Second Schedule of the Constitution
which speaks of secrecy of voting as it was in Article 48 of the original Constitution of
1972 and the secret ballot having been intentionally omitted in the present Act the said
system of secret ballot expressly omitted with knowledge cannot be read into the
impugned legislation even by implication. The learned Attorney-General lastly submitted
that this open balloting system is also in existence in the United States Presidential
election law.
7. There are the sum and substance of the contention of the learned Advocates before
this Court as narrated above. In the instant applications the allegations basically had
been that the impugned legislation which narrated the procedure for election of the
President is violative of Articles 11, 26 and 39 of the Constitution and they having been
inconsistent is void. Therefore the question in the instant case would be whether the
impugned legislation is in conflict with the provision of the Constitution for it to be
declared ultra vires of the Constitution because of the inconsistency as provided under
Article 7(2) of the Constitution.
8. Article 26 of the Constitution relates to the existing law in force on the commencing
day of the Constitution and provides that all past laws distinct from future laws which
are inconsistent with the provisions of the Constitution would also be void to the extent
of its inconsistency.
9. Article 7(2) in Part 1 provided that the Constitution is the solemn expression of the
will of the people, the supreme law of the Republic and if any other law is inconsistent
with this Constitution that other law shall, to the extent of the inconsistency, be void.
10. Under the scheme of the separation of powers as spelt out in the Constitution of the
People's Republic of Bangladesh and in most other written and democratic constitutions,
and also the unwritten constitution as in England, the legislature namely the Parliament
is the supreme law making authority and the laws are to be made only by the legislature
and not by others and if any other is to make laws those others ought to be also
empowered by the legislature. In England where there in no written Constitution,
supremacy of the Parliament in making laws is said to be absolute in terms. It has been
said that Parliament in England can do anything except turning a man into woman or a
woman into man in theory though not always in practice, as even in England Parliament
is not presumed to make a law which takes away vested human rights or violates
international law or international treaties and obligations.
1 1 . In a written Constitution there is no such absolute right and is limited by the
Constitution. This limited sovereignty of Parliament in making the law is an essential
feature of the working of the Government under a written Constitution. Yet the fact
remains that legislature is yet to be the only law making authority though restricted by
the provision of the Constitution. In the instant case, the vires of certain legislation has
been challenged. It is alleged to be ultra vires of the Constitution. This is a cardinal
principle of the interpretation of Statute and also the provisions of the Constitution
which is also a Statute that it need be interpreted not in isolation but always by

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 reference to the context in which the said expression appeared. It is also the cardinal
principle of interpretation of a statute that in interpreting the law the court will take the
law as it would find the law and take every word found there in its ordinary meaning as
expressly said in the Act itself. Legislature meant what it said and had not meant what it
had not said and thus nothing can be added to an expression even by implication,
where the expression is unambiguous and clear, and no lacuna can be filled in on the
basis on the so-called supposed intention of the legislature nor an interpretation be
given to reach a law which the court may consider to be the law, keeping in mind the
principle that any interpretation which would lead to repugnancy need be avoided if it
can be so avoided, without doing any injustice to other provisions of the Act.
12. Article 48 of the Constitution provides that there shall be a President of Bangladesh
to be elected by members of the Parliament in accordance with law. This thus, may be
divided into three parts namely, there shall be a President of Bangladesh, secondly, he
shall be elected by the members of the Parliament and thirdly, he shall be so elected in
accordance with law. There is nothing more and nothing less. This right of voting is
specifically limited to the members of the Parliament unlike other Constitutions where
the President is elected by the general electorate and this election of the President is to
be done in accordance with law and as the Constitution left the procedure of election to
be regulated by law enacted by the Parliament, the said legislation therefore, would be
a sub-constitutional enactment.
13. From a reading of Article 48(1) it would be seen that the law makers had not spelt
out in the present Constitution itself, as it was previously in Second Schedule of the
Constitution of 1972 as to how, where and in what process and method the said
election would be held or conducted which the framers of the Constitution could have
done but chose to leave it to be spelt out by a law made by the Parliament namely, the
legislature.
1 4 . Going to the law namely Act 27 of 1991 made under Article 48(1) of the
Constitution it is seen that the said law in section 10 provided that the election to the
post of President shall be by open ballot and the President shall be elected by the
members of the Parliament by open ballot. Section 10(2) provided that every and each
member of the parliament shall have one vote. Sub-section (3) of section 10 provides
that for voting purposes, the Election Commission should prepare ballot paper of the
required number and each ballot paper should have two parts and in the counterfoil in
each ballot the name of the electors namely, the voter, namely each member of the
Parliament voting shall sign his name in the counterfoil and in the outer foil where there
would be printed the Division number of the voter and also the name of the candidates
in alphabetical serial, the voters would be required to vote by signing their name
against the name of the candidate he is voting for and every voter then takes the ballot
to the ballot boxes and cast his vote by inserting the ballot in the ballot boxes, that
would be preserved for this purpose. Section 11 of the said Act provided that the
Election Commission shall count the vote thereafter openly and will declare the person
getting the highest number of votes to be elected. If two candidates getting the highest
votes but in equal number it would be decided by lottery and the declaration of the
Election Commission as to the person elected after counting the vote in the way it is
mentioned would be final.
15. The impugned legislation thus, it appears clearly provides the procedure as to how
one would vote for any particular candidate out of many and there is no ambiguity as to
that and if election means choosing one from many there is no ambiguity as to that
right of choosing also. The main objection is not directed to the fact of choosing but to

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 the process of choosing. What is contended is that in making the law the legislature
took upon itself the duty of spelling out the procedure of voting in the election namely,
open voting which is in conflict with the fundamental rights guaranteed and also against
the spirit and concept of democracy.
1 6 . This brings us to the interpretation of the expression Franchise or the right of
suffrage where I am tempted to quote a few lines from Corpus Juris Secundum, Vol. 29
at page 2 where it has been written thus:
The right to vote ordinarily is considered to be privilege conferred by the State
rather than a natural right of the individual or citizen. The right of suffrage is
the right of a man to vote for whom he pleases. The right to vote is a political
right or privilege, or civil right, to be given or withheld at the exercise of the
law-making power of the sovereign. It is a privilege which may be waived. The
right to vote is not a natural, inherent, or unalienable right, but a franchise
dependent on law, by which it must be conferred to permit its exercise. It is not
necessary incident to citizenship. The right to vote is not an absolute
unqualified right, but is altogether conventional. When once granted, it may be
taken away by the exercise of sovereign power.
In PR Aiyar's Law Lexicon at page 380, the learned author defines it thus:
Elective franchise on Electoral right. The elective franchise, even in the most
democratic countries, is not a natural right, and is made to rest upon the
authority of law which defines the qualifications of those citizens who may
exercise it. The very term elective franchise excludes the idea of natural right
for a franchise is a privilege granted by the sovereign authority to an individual.
17. So there should exist no dispute with the concept that the right to vote is a political
right given by the Statute and therefore, be regulated by the Statute. This right of
regulating the voting procedure is not the question before us because the question
before us is whether the right of regulating the vote can be regulated in a way violating
the alleged constitutional provisions, I have mentioned it here only to clear the point
that when one talks of vote one should know that it is a privilege given by the sovereign
even in a democratic Constitution by law to be regulated by law and even can be
withdrawn by law provided the legislature in making the said law regulating or
withdrawing or restricting the right is not acting in violation of the provision of the
Constitution. In the instant case it has been very forcefully argued by Mr. Amirul Islam
and Mr. Moudud Ahmed that there is a violation of the fundamental right namely, the
right to freedom of choice and freedom of conscience and thought as guaranteed under
Article 39 of the Constitution and also the right of the people to take effective
participation in the administration through their elected representatives as in Article 11
of the Constitution. The law had been made thus in violation of the provision of the
Constitution and is void under Article 7. The question of equality also came up during
the discussion when it was argued that for voting in general election the voting is by
secret ballot and if the member of the Parliament in voting for the President shall vote
openly he shall be exposed to others to the prejudice of his political career.
1 8 . It is seen that in the instant case a voting procedure is spelt out in which the
members of the Parliament while voting would be required to sign his name in the outer
foil subjecting them, it is alleged, to exposure to others by asking them to vote openly
which is supposed always to be done secretly and it is done so secretly by the millions
in general election. The preamble of the Constitution which is the guiding principle in

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 the interpretation of the Constitution spelt out that the procedure of the Government in
the country would be democratic and there would be a democracy free from exploitation
with an aim to remain equal amongst all the citizens and a democracy cannot work
without its representative in Parliament, duly elected by general voters eligible to vote
and elected by them by exercise of their free choice, acting freely according to dictates
of their conscience as guaranteed by the Constitution and that being the position and
that being the spirit of the Constitution, this concept of open ballot which not only
exposes the members to penalty but is also totally foreign to the concept of democracy
as emphasized in the Constitution cannot be sustained in law.
19. In order to appreciate this contention one is to look at the salient feature of the
Constitution of the People's Republic of Bangladesh which has been spelt out in the case
of Anwar Hossain Vs. Bangladesh by the Appellate Division more popularly known as
8th Amendment case. It has been clearly mentioned therein that this is a unitary and
sovereign Republic or all powers belong to the public, the Constitution is the supreme
law of the Republic and if any other law is inconsistent with the Constitution that other
law shall be void to the extent of its inconsistency and Article 7 of the Constitution is
unique. Article 8 is another salient feature of the Constitution which provides the
fundamental principles of state policy. Article 44 figures the fundamental rights and
other features namely, the Judges shall be independent, that there should be a
separation of power under three structural pillars. That was all. Neither the right to vote
nor for that matter the right to a secret vote, has been spelt out expressly in any
provision of the Constitution to be a fundamental right or a principle of policy to be a
salient feature of the Constitution. In fact from the different provisions of the
Constitution we do find that the democratic institution as spelt out in the Constitution to
be the aim, did not narrow it down to a choice of representative either by direct or by
secret ballot, leaving it to be decided by law on the basis of the political expediency and
necessity of the time at a given period. Voting by secret ballot or by open ballot or by a
division are all accepted modes of voting and different ways of choosing and those
modes are also not foreign to our Constitution and only because an election is ordered
to be held by open vote would not make the said election illegal and the right to choose
according to one's own conscience would be existing in both the procedures whether it
is by an open vote or by a secret vote. The system of open ballot procedures could not
be said to have taken away the right to vote freely and fearlessly. If one does not want
to submit to illegal demands or illegal pressures or illegal gratification it is always open
to him to choose. The fear of pressure or intimidation would always be there and in all
elections whether open or secret and as it has been said that in that lonely corner of the
booth before the ballot box, the individual voter is a very lonely person and there he is
guided by his own conscience only and he can vote for whom he wishes and it is always
upto him to decide at that moment The members of the Parliament who are the only
electors in electing the President of the country would be discharging a heavy duty
reposed only upon them as the elected representatives of the people and in the present
system a member of a party is mostly a party candidate and thus, out of necessity he is
guided in the political activities by the dictates of the party both inside and outside
Parliament and this restriction is a Constitutional provision as in Article 70 of the
Constitution which provided that a person elected as a member of Parliament at an
election at which he was nominated as a candidate by a political party shall vacate his
seat if he resigned from that party or voted in Parliament against that party and the
explanation appended to is to the effect that any member of Parliament being present in
Parliament who abstains from voting or absents himself from any sitting of Parliament,
ignoring the direction of the party which nominated him at the election as a candidate
not to do so, shall be deemed to have voted against that party and if, at any time, any
question as to the leadership of the Parliamentary party of a political party arises, the

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 Speaker shall within seven days of being informed of it, in writing by a person claiming
the leadership of the majority of the members of that party in parliament, convene a
meeting of all members of Parliament of that party in accordance with the Rules of
procedure of Parliament and determine its parliamentary leadership by the votes of the
majority "through division" and if, in the matter of voting in Parliament any member did
not comply with the direction of the leadership so determined, he shall be deemed to
have voted against that party under clause (1) and shall vacate his seat in the
Parliament. This is a self imposed restriction in the Constitution itself which speaks of
the role of a political party and its manner of influence upon a member of a political
party, voted to Parliament under its ticket. A member of Parliament is thus, not that free
agent to act while voting in Parliament on issues decided on party basis, This Court,
however, in the instant case is not concerned with the extension of the applicability of
the restriction as under Article 70 of the Constitution but only with the constitutionality
or otherwise of section 10 of Act 27 of 1991 but Article 70 of the Constitution would be
relevant for understanding the scheme, the intention of the legislature in framing the
Constitution so far the voting right of the members of the Parliament is concerned in
Parliament as a member of the Parliament as such distinct from his right and position as
an ordinary voter, voting in general election without a party dictation.
20. We are also not in this matter concerned with the election of the President as such
because this cannot be the subject-matter here because Article 125 provides that
notwithstanding anything in the Constitution no election to the President shall be
challenged except by an election petition before the Tribunal to be constituted under the
law. Without observing anything at this stage as to this bar as under Article 125(b) of
the Constitution which may shake the very foundation for these writ petitions under
Article 102 by pointing out the non maintainability of the writ petitions, I would like to
confine myself to the specific averments made in this writ petition and it is to the effect
that the election by members of the Parliament electing a President would be by a secret
ballot because secrecy of ballot is the very essence of democracy and a person electing
any person by a secret ballot would be free to express his opinion freely which is the
basis of all free elections and is democratic in nature but in the instant case as it is
argued before the other Bench and repeated here also that this fear of being exposed
because somebody would be watching over the voter's shoulder as to in whose favour
one is casting his vote, would be a fetter upon democratic free exercise of choice and
the consequent exposure to other members of the party of the particular member of the
Parliament and the prospect of political doom. It is this fear which would attract Article
39 of the Constitution and Article 39 would come into direct conflict with section 10 of
the Act 27 of 1991.
21. This point which appears to be very simple and the main argument pressed by the
petitioner before this Court, I find to be rather misconceived. This expression freedom
of conscience and thought would have the ordinary meaning of freedom of choice
between right and wrong and if it is extended to vote it would mean choosing the one
out of many as one would be dictated by his sense of right and wrong but this has not
been restricted in the instant case because in the instant system of voting, which also
does not appear to be that open ballot as it would be in case of division of voters and
counting each voter physically on one side and the other on the other side or by show
of hands to be counted by a third person namely by the Speaker in presence and at the
showing of everybody else including the party leaders and other members perhaps
including the Parliament officials who are not members of the Parliament, would not
prohibit a person from distinguishing the right from the wrong and from choosing one
person at his free will because if a member of a Parliament should have a moral
obligation to himself and also a political obligation the voter would be at liberty to

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 choose according to his own conscience at the expenses of offending his party or party
choice if he would differ with the party choice and there is no such restriction in Act 27
of 1991 provided nor of any fetter on his or their choice but only to put the name of the
Member of the Parliament voting against the candidate he is choosing and nothing more
and there is no provision in the Act nor do I find in any other law that the Election
Commission would be compelled by the leader of the party or of any party to show the
ballot paper disclosing the name of the voter to the members of the Parliament and it is
not also in the Act that the votes would be counted not by the number of votes a
candidate would be receiving but by the name of the voters who had voted for a
candidate because the law in this regard is not to count the name of the voters but to
count the number of votes cast in favour of one candidate. If there is of course any
challenge as to any impersonation in voting then the signature of the voters would
come into picture to be examined and identified but that would be a very rare case in
this sort of election limited to three hundred thirty voters only out of millions of
population in Bangladesh and when everybody would know everybody and there would
be little scope for impersonation, However, as observed herein before the question of
possible political ruin by exposure to other members would be a matter of speculation
and a remote possibility which cannot be the basis of any contention that the right of
electing a person according to that person's choice has been taken away by this process
of open ballot which vote I do not also consider to be quite open in nature.
22. If it is accepted for the sake of argument that Articles 70 and 74(1) speak of a
different system of voting because they relate to the essential function of the Parliament
and thus be kept distinct from Article 39. The term "conscience" as it appear in Art. 39
in the chapter of fundamental rights of the Constitution, needs some examination.
23. In Oxford dictionary the word conscience means "moral sense of right and wrong."
The ordinary meaning of freedom of conscience would thus relate to one's sense of
moral values which cannot be universally defined because it is relative, being peculiarly
personal in nature. Thus moral conviction of an individual when applied to matters
which are political and social in nature would mean the right of an individual to be true
to his conviction if one chooses to be so in matters of his own, the holding of which
conviction effects none else but himself in the society. This insistence on being true to
one's sense of moral values and conviction such as choosing one's own God to worship
or objection to compulsory military service on the basis of religious conviction or the
right claimed by an atheist not to affirm in the name God, when would travel the limit
of individual world and come to be relied upon in matters public in nature it would
become subject to law and be regulated by law for greater good, demanding general
acceptance of a conduct of behaviour based on public morality as distinct from
individual values.
24. Professor Laski in his book "Liberty in Modern State" defines liberty to be Private
liberty, Political liberty and Economical liberty. Private liberty according to the learned
author, means an opportunity to exercise freedom of choice in those areas of right
where the result of his effort mainly effect that individual and none else. Religion is
good example of such liberty. Political liberty means "the power to be active in affairs of
state" Economic liberty is "the security and opportunity to find reasonable significance
in the earning of one's daily bread." Art. 39 which guarantees freedom of conscience
and thought and not subject to any reasonable restriction imposed by law, therefore
would relate to this private liberty to choose between two alternatives as directed by his
sense of moral values, in those areas of life where the result of one's effort effects none
else but only the individual. It is thus, not to be extended to a voting system where the
member of the Parliament is choosing a President both in his private capacity as an

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 individual and in his capacity as a representative of the people and that choosing
concerns many many others and not only the individual elector and it is so for the
simple reason that member of a Parliament, by his own choice is attached to a political
party and when be votes he acts not as an individual as such but also as a public
representative and a member of the Parliament. He has been given that honour of
choosing the President by the Constitution itself to the exclusion of the general voters.
He does vote not as an individual but only because he is a public representative who
has also the Constitutional obligation to abide by the decision of his political party, to
vote in the Parliament as a member of the Parliament The role of the political party in
the affairs of the Government, its power to regulate the members of the Parliament
belonging to a party is clearly spelt out in our Constitution. It is a self imposed
restriction, which the framers of the Constitution thought it wise to spell it out in clear
terms for a better working of this new democracy in Bangladesh which came into
existence after a bitter and costly war of liberation. This self imposed restriction which
is unique in our Constitution and only can be avoided legally by resignation from a
political party when the consequence would be losing the membership itself. That is the
law and there is no escape from that.
25. In the instant case we are concerned with the legality of a voting system namely
open ballot. This system of voting by show of hands or by division as stated herein
before is not foreign to our Constitution because Article 74(1) speaks of the election of
Speaker and the Deputy Speaker, so also election of leader of a parliamentary party by
votes of majority through division as under Article 70(2) or by show of hands where
this question of liberty guided by one's own conscience would also be relevant yet
Article 70(2) and Article 70(1) coexisted along with the conscious clause as in Article 39
all these years from 1972 onward. They ran pari passu and voting for the speaker or
leader of a parliamentary party by open vote is never considered either by the framers
of the Constitution or by any court of law to be in conflict with Article 39 or
undemocratic in nature and if an interpretation is given to Article 39 by holding that an
open ballot system, by which the members of the Parliament is to elect the President is
violative of Article 39 then Article 39 will also come into conflict with Article 70(2) and
also with Article 74(1) of the Constitution. An attempt has been made to argue that the
election of a Speaker or a Deputy Speaker or a leader of a Parliamentary party is within
the essential function of the Parliament and it therefore would not be treated at par with
the election of President by the members which is an extraordinary special function and
not function of a Parliament as such but I do not find any substance in that also because
election of a Speaker is never a legislative function of the Parliament or the election of
parliamentary party leader so also the election of the President. Those are specific
functions and duties of the members of the Parliament imposed by the Constitution over
and above its legislative function. No distinction thus is warranted and there is also no
warrant to argue that while electing the President there must be a secret ballot but while
electing a Speaker or Deputy Speaker by the same member there could be an open
ballot, rather it can be argued with better reason that if there can be an open voting for
Speaker there can also be an open ballot system for President election too, to be elected
by the same very limited group of electors and the only group who could vote for the
Speaker or for the President and not the ordinary voters. In fact both the systems, open
and secret ballot, could be available as both are valid systems of voting for choosing
one from the other and it is also recognised by the Constitution itself and hence there is
no warrant for the view that in a democratic Government all votes, out of necessity,
must be by secret vote and never be by open ballot and all open ballot systems would
be ultra vires of the Constitution which if holds good would permanently prohibit any
kind of open ballot every where in this country and we will read into the Constitution an
implied provision that all kinds of open ballot is prohibited and only secret ballot is

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 guaranteed by the Constitution under Article 39 when it is not the legal position as in
fact there is no constitutional guarantee of a secret ballot and this cannot even be read
into the Constitution by implication because that would amount to legislation.
Parliament is the supreme law making authority and the only law making authority
subject to the Constitution but not subject to any other law as such. A law made by the
Parliament would be void only if it would come into direct conflict with any specific
provision of the Constitution and not otherwise. There is no legal proposition such as an
implied conflict. Constitutional provision says nothing impliedly but specifically and
directly. Hence if open ballot as a system of voting would have been considered by the
Constitution framer to be repugnant to a democratic concept of Government it ought to
have said so specifically. There is a clear distinction between what the law is and what
the law should be. A court of law would take the law as it would find the law and would
not speculate as to what could have been the law or what should have been the law and
would not interpret or declare a law void on the basis of an alleged implied meaning of
a constitutional provision.
26. In the language of Lord Diplock (Hind Vs. The Queen 1976 1 All England Reports
(PC) page 253):
A written Constitution must be construed like any other written document. It
must be construed to give effect to the intention of those who made and agreed
to it and those intentions are expressed in or to be deduced from the terms of
the Constitution itself and not from any pre-conceived idea as to what such a
Constitution should or should not contain. We agree that constitution differs
from ordinary legislation and this fact should to even greater reluctance avoid
to imply something not expressed. While we recognise that an inference may be
drawn from the express provision of a Constitution, we do not agree that on the
adoption of a Constitution a great deal is left to necessary implication.
27. In England the Constitution position of a member of Parliament is somewhat similar
as to ours but it is regulated not by law but convention. A political party in English
system is the pivot round which most politics in that country revolve by years of
tradition and because of its vast political workers and other resources it now a days has
a tremendous power of vote mobilisation. Candidates, who always seek party
nomination, are always selected for their party loyalty and in fact often are very old
tested workers at grass root level and are always expected to work for the party, inside
or outside the Parliament. There is thus very little scope for any conflict between party
conscience and individual conscience. Decision at party level may not always be taken
unanimously but once it is taken the decision becomes the decision of the minority
group also who were against it Yet if any minority member would wish to work
according to his own dictates of right and wrong against his party decision he is free to
do so but only would be expected to "resign" from the party. Similarly, if a Minister
would not agree with the decision of the Prime Minister he is at liberty to act according
to his own wish but convention demands that he should do so after resigning from the
Ministership and from the party. One cannot have both; to work according to his own
choice by flouting party decision and then also retain his membership. He is free to act
according to his choice but only at the expense of his membership of the party. In
England a member of Parliament can never be removed during his tenure in Parliament
as in England there is no such law as in Art. 70(2) of our Constitution but if a member
had to resign from the party he would have very little chance of being re elected in the
next election in the absence of a political party to support him (Ref: Constitutional Law
in England, Wade & Philips).

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 2 8 . In our system also a member of the Parliament is not precluded from voting
according to his choice by flouting the party decision but at the risk of his voting
against his party and facing the consequences that would arise. Can those unwanted
consequence be avoided by casting votes secretly by the members of Parliament behind
the back of the party. The answer is yes. It is possible if the constitution would make
such a system of voting for all kinds of voting in Parliament in taking major decision
even minor decision but that would reduce the party control over its members in
Parliament to a vanishing point which is repugnant to the express provision of the
Constitution.
29. India, of course, is one of the biggest working democracies in the world having a
Constitution of its own which remained in force without any interruption for all these
years. A decision of the Madras High Court in the case of Madathil Ahmed Haji Vs.
Muthana Kunshiram Kurup and another reported in AIR 1954 (Madras) 360, would be
relevant. In that case the Madras Village Panchayat Act, 1950 and the Rules made
thereunder namely, Rule 9 preseribing open ballot in case of class II Panchayats was
alleged to militate against Article 14 of the Constitution of India. In that case the
question of classification being discriminatory and open ballot being unconstitutional
was canvassed. The Division Bench of the Madrass High Court presided over by
Rajamanner CJ and Venkatarama Aiyar, J. in the relevant portion of the judgment, held
thus:
Mr. Kumaramangalam, during the course of his argument, appeared to contend
that citizen had a fundamental right to vote secretly. There is no warrant for
such an assumption. Indeed, historically, the system of voting by secret ballot,
was not at one time so universal as it is now. South Australia was the first State
in recent times to introduce secrecy of the ballot in 1856. Then the system
spread to Europe and America. It was brought into England by the Ballot Act of
1872. While it is true that secrecy of the ballot provides a safeguard to the
purity of election there have been varying opinions as regards the desirability of
secret voting. Even today in the legislative bodies, the vote is taken openly. In
ancient Greece and Rome, elections to the Assemblies were conducted by the
method of voting by show of hands, though for some purposes secret ballot
was resorted to Likewise, in ancient India, we had both the methods prevailing.
There is nothing in our Constitution which makes voting by secret ballot
compulsory for elections to all the local bodies.
3 0 . In that case under report, it has also been observed that if it was intended by
legislature that an election may be by secret voting such an intention will have been
directly expressed. On the other hand, the legislature was content to leave the manner
of election to be prescribed by the Government as was done.
31. In the instant case it is clearly seen that the framers of this amended Article 48 in
the Constitution has left the procedure and process of ballot to be regulated by law and
if the Constitution frames, and in the instant case the Select Committee of the 12th
Amendment Bill intended an election by secret ballot by re-introducing Schedule II
granting secret ballot in Presidential Election as existed in 1972 Constitution, the
legislature could have said so and when the legislature did not say so with knowledge
of the omission of the Second Schedule and with knowledge of the draft of the 12th
Amendment Bill put in by Mr. Abdus Samad Azad representing the 7-party alliance, it
would not be possible for this Court to read into that law some concept of secret ballot
which has been omitted consciously by the legislature by implication as it is not the
function of the court to read into the act of Parliament something by implication. As has

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 been referred to hereinbefore there is no guaranteed right of secret ballot in our
Constitution.
32. The learned Attorney-General has contended that the right to vote is a statutory
right It is a privilege and quoting Halsbury's Laws of England, 4th Edition, Vol, 41 he
submits that the right to vote to an election of and the question of election are wholly
governed by statute and law and in the instant case the petitioner without challenging
the Presidential Election by an Election Petition which is the only process of challenging
the election, conducted under a law made by the Parliament in pursuance of Article 48,
came before the writ jurisdiction when he had other remedy before the Tribunal to
challenge the election which they have not done.
33. I have read the judgment of Mr. Habibur Rahaman, J and I find that there this point
was also examined observing that it could have been done by an election petition which
period of challenge is over and what they are not entitled to do directly, now, trying to
do indirectly by a writ petition under Article 102 of the Constitution. The Attorney-
General submitted that in the instant system of voting of President there is only a so-
called fear of identification which is too remote a possibility because identification
remains with the Chief Election Commissioner only and he is to count the vote not by
names of the voters and the Chief Election Commissioner is not bound to disclose who
had voted for whom and it is thus not that open as it is contended.
34. We have observed hereinbefore that there is of course a possibility of exposure in
all kinds of open ballot but only because there is an exposure would not mean that it is
illegal because under the Constitution there is no guarantee of any secret ballot and the
stamp of democracy as in the preamble and in Article 8 of the Constitution do not ipso
facto follow that in a democracy an election be only by secret ballot and not by open
ballot and as has been observed by their Lordships of Madras High Court that even in
the ancient democracy of Sparta and Greece, the poll was by open ballot. The citizens
of those States were certainly more than 330, as in the instant case, voting for the
President.
35. In English political and parliamentary system the political party is very powerful
both inside and outside and often dictates issue and if disliked by a particular member
or even by a Minister it can only be avoided from being abated by individual resignation
but not to remain in the party even thereafter and this resignation is not regulated by
law but by convention.
36. Mr. Moudud Ahmed argued similar to the point raised by Mr. Amirul Islam except an
addition to the effect that the venue of the seating could not be the Chamber of the
Parliament which argument having not been accepted by both the Judges in the earlier
decision. I would not go into that.
3 7 . Having considered the submission of the parties and having acknowledged the
tremendous sincerity and diligence with which the learned lawyers namely, the
Attorney-General, Mr. Aminul Huq and Mr. Amirul Islam and Mr. Moudud Ahmed
attempted to help the Court in coming to a right decision in this matter and having
conveyed to them my sincere appreciation I would end by affirming the decision of Mr.
Habibur Rahman J in this matter, on the grounds as stated by me, hereinbefore. I
consider the judgment of Mr. Justice Fazle Hossain Mohammad Habibur Rahman, J to be
based on more cogent reasons but observe that a writ matter in motion is always
scrutinised by the Court and if the Court does not find a prima facie case for issuance of
the Rule, the Court certainly would be at liberty to reject it summarily. The Division

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 Bench generally in matters of issuing a Rule does work as a body whether to issue a
Rule or reject an application summarily and any difference of opinion at this level is
very rare though not illegal.
In that view of the matter having agreed with Mr. Justice Habibur Rahman, on clear
reasons of my own as hereinbefore, I do find no substance in this application namely,
Writ Petition Nos. 2195 of 1991 and 2213 of 1991 and reject the Petitions summarily.
The Writ Petition No. 2238 of 1991 having not been before this Court. The impugned
Ordinance having been withdrawn, that petition is disposed of accordingly.
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