Should Foreign Courts have the ability to effectively disqualify Bangladeshi MPs?
On 22 February 2021, the Bangladesh Parliament Secretariat, in accordance with Rule 178(4) of the Rules of Procedure of Parliament, issued an Extraordinary Gazette (No. 11.00.0000.863.09.001.19-30) notifying that Mohammad Shahid Islam (Member of Parliament (MP) from 278 Lakshmipur-2) is no longer qualified to be an MP under Article 66(2)(d) of the Constitution of Bangladesh, since on 28 January 2021 a criminal court in Kuwait convicted him of a criminal offense involving moral turpitude and sentenced him to four years of rigorous imprisonment. Hence, the aforesaid gazette notification declared the seat of the MP from 278 Lakshmipur-2 constituency to be vacant from the date of the conviction (i.e., the date of disqualification), in accordance with Article 67(1)(d) of the Constitution.
Subsequently, on 8 June 2021, the High Court Division (HCD) of the Supreme Court issued an order summarily rejecting a writ petition (In re: Writ Petition 3994/2021) challenging inter alia the legality of the aforesaid gazette notification. According to reports, the HCD observed that a Bangladeshi MP can be disqualified from holding the office of an MP if they are convicted by any court of a sovereign state for a criminal offense involving moral turpitude and sentenced to imprisonment for two or more years. Thereafter, on 17 June 2021, the Appellate Division (AD) of the Supreme Court dismissed a leave to appeal petition (Civil Petition 1385/2021) filed against the aforesaid HCD order. The full text of the AD and HCD orders have not yet been released.
The key takeaway from the aforesaid exposition is that the decision to disqualify Mr Islam as an MP is formally based on a judgment of a court of the State of Kuwait. This article explores whether foreign courts or courts of other sovereign states should have the ability to effectively disqualify a Bangladeshi MP. At the outset, it must be clarified that this article in no way argues that Mr Islam is not liable for a 'criminal offence involving moral turpitude' or that he should not be disqualified from being an MP – rather, this article merely assesses the potential repercussions of the precedent that is set by the basing the decision to disqualify Mr Islam on a judgment of a foreign court.
Article 66(2)(d) of the Constitution states that a person is disqualified from being an MP if they are convicted for a criminal offence involving moral turpitude and sentenced to imprisonment for two or more years. The text of Article 66 and the Constitution itself does not elucidate whether the conviction must be issued by a Bangladeshi court or whether a criminal conviction by a foreign court can operationalise Article 66(2)(d) of the Constitution. This is where the recent decisions and orders relating to the disqualification of Mr Islam provides some clarity and sets an important precedent since Mr Islam's disqualification is based on a criminal conviction and sentence issued by a court of a foreign state (i.e., the State of Kuwait). Accordingly, foreign courts could now be said to have the ability to effectively disqualify Bangladeshi MPs by convicting them of a criminal offense.
The present text, interpretation and implementation of Article 66(2)(d) of the Constitution, as of June 2021, does not contain any exceptions or safeguards to protect against the potential abuse of Article 66(2) by foreign states. This in a way opens up Bangladeshi MPs to possible threats or coercion of foreign states through their domestic court system. Since the procedure in domestic courts of foreign states are controlled by the latter, a foreign state may utilise the threat of initiating criminal prosecutions against a Bangladeshi MP as a means of influencing the MPs decisions and actions. The precedent set in Mr Islam's case seems to effectively mean that, if a court of a foreign state unjustly, or owing to that state's mala fide intent, convicts a Bangladeshi MP for a 'criminal offense involving moral turpitude'– which includes almost all criminal offenses – then that person, ipso facto, would be disqualified from being an MP. A gazette notification by the Parliament Secretariat to that effect is a mere formality, since the Parliament Secretariat does not seem to have the authority to make legal or factual assessments vis-à-vis purported disqualifications under Article 66(2) of the Constitution.
The aforesaid concerns relating to MPs extend to ministers as well, since almost all of the ministers are MPs. The concerns also extend to candidates in parliamentary elections, since the criteria set out in Article 66(2) of the Constitution also deals with the eligibility of a person to stand for parliamentary elections. Thus, the precedent potentially opens up not only MPs but also ministers and candidates in parliamentary elections to the threat of foreign influence and pressure. The precedent set in Mr Islam's case could also affect the interpretation and implementation of Article 66(2) (a) and (b) of the Constitution whereby an MP may be disqualified if they are declared to be of unsound mind by a competent 'foreign' court or they are an undischarged insolvent (which also involves a court procedure) in a foreign state, respectively. It must also be noted that, foreign courts do not have any obligations relating to privileges and immunities of MPs and the Parliament, such as those provided under Article 78 of the Constitution.
The situation resulting from Mr Islam's case could also be said to violate Bangladesh's sovereignty by subjecting the qualifications and eligibility of Bangladeshi MPs to the will of foreign states (through their domestic courts). There seems to be two solutions to this predicament: either, limit the interpretation of convictions, declarations and procedures with regard to the criteria of disqualification in Article 66(2) to only Bangladeshi courts and procedures; or, subject purported Article 66(2) disqualifications which are based on a judgment of a foreign court to an additional process of affirmation or confirmation by the High Court Division of the Supreme Court or some other judicial or quasi-judicial body, in which the HCD or the relevant body could assess the credibility of the foreign court's judgment and procedure, and decide whether disqualification is warranted under Article 66(2) of the Constitution.
It may very well be that the gravity of the potential repercussions of the precedent set by Mr Islam's case and the situation arising out of it is being overstated. Nonetheless, relevant legislative or judicial safeguards need to be adopted to protect MPs, ministers and the Parliament from interventions of foreign states, and thereby, safeguard Bangladesh's sovereignty.
The writer is a Senior Lecturer, School of Law, BRAC University.