Is Khaleda Zia qualified to contest the upcoming election?
On October 28, Khaleda Zia was convicted and sentenced to seven years' imprisonment in the Zia Charitable Trust corruption case. The next day, her sentence in the Zia Orphanage Trust corruption case was raised from five to ten years' imprisonment. With such dramatic developments, questions have arisen as to whether she would qualify to contest in the upcoming election.
Article 66(2) of our Constitution states, "A person shall be disqualified for election as, or for being, a member of Parliament who – (d) has been, on conviction for a criminal offence involving moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release."
Begum Zia's eligibility to contest in the upcoming election will depend on: (1) whether her sentence is suspended; (2) whether her conviction is stayed; and above all (3) the decision of the Election Commission (EC).
Several cases on the issue of the eligibility of a convict-appellant to contest elections had appeared before our higher judiciary, but the court's judgments were either unclear or contradictory. In each case, a convicted person, on appeal, was allowed to contest or remain MPs.
According to Mahmudul Islam (Constitutional Law of Bangladesh, 3rd edition, p. 461), a person who is convicted of moral turpitude and sentenced to more than two years will have to petition the court to get his/her order of conviction suspended under Section 426 read with Section 561A of CrPC, because the grant of bail does not take away the effect of conviction and civil consequence of disqualification for election. In his view, such a suspension should only be allowed considering the seriousness of the offence and the exceptional circumstances justifying such order. In Md Mamun@ Walid Hasan vs State, Justice Md Rezaul Haque and Justice Md Khorshed Alam Sarkar found that the High Court—not the lower court—"may grant stay of Conviction under Section 561A read with Section 426(2) of the CrPC only in exceptional circumstances where non-grant of stay would lead to injustice and irreversible consequences."
The issue of the eligibility of a convict-appellant to contest parliamentary election once came up in 1996, when General Ershad became a candidate while serving his sentence during the pendency of his appeal before the High Court. The Returning Officer found his nomination paper valid, which AKM Mayeedul Islam challenged in the High Court. The Court summarily dismissed the case. The Appellate Division in a subsequent judgment (AKM Mayeedul Islam vs Bangladesh Election Commission, 48 DLR (AD) 1996) did not settle the question of General Ershad's disqualification and held that it was to be decided as an election dispute by the Election Tribunal. However, the court held that the judiciary should not interfere in election disputes unless it is coram non judice or malice in law.
Subsequently, on August 24, 2000, Ershad's conviction was upheld by the High Court in Janata Tower Case and the Parliament Secretariat declared his seat vacant. General Ershad filed a writ before the High Court contending that his disqualification could not become valid until the conviction was finalised at the end of the appeal process. Although two justices found the decision of the parliament illegal, they differed on the timing of the disqualification (Hussain Muhammad Ershad vs Abdul Muktadir Chowdhury, 53 DLR (2001)). Justice Joynul Abedin found that the disqualification would take effect when the conviction became final while Justice ABM Khairul Haque found that the disqualification already took effect at the time of the first conviction.
The case of Dr Mohiuddin Khan Alamgir vs Bangladesh (62 DLR (AD) 2010) is also relevant. Dr Alamgir was convicted of corruption on July 26, 2007, against which he appealed before the High Court on November 4, 2007. The High Court gave him bail on August 28, 2008 but suspended his conviction on January 22, 2009.
Prior to the suspension of his conviction and sentence, Dr Alamgir filed for nomination for election, which the RO rejected. The EC confirmed the decision of the RO the next day, which Dr Alamgir challenged before the High Court. The court summarily rejected his writ. However, on appeal, the Chamber Judge, Justice Joynul Abedin stayed the High Court decision and ordered the EC to accept Dr Alamgir's nomination paper. In this case too, the issue of when a convict-appellant becomes disqualified remained undecided.
In addition, even though a convicted person cannot remain MP, our present Disaster and Relief Minister, Mofazzal Hossain Chowdhury Maya, and Abdur Rahman Bodi have been continuing their role as MPs despite conviction.
It may be noted that Mr Maya was convicted by the lower court for corruption and sentenced to 13 years' imprisonment in 2008, which was set aside by the High Court in 2010. He became an MP and a minister in 2014. Later the Appellate Division overturned his acquittal, against which he appealed and has been continuing as MP/minister. Incidentally, his conviction was reversed on October 8. Similarly, Mr Bodi, elected as MP in 2014 and convicted and sentenced to three years' imprisonment in 2016, has been, on appeal, continuing in his position.
It is clear that there is still much uncertainty as to whether Begum Zia would be able to contest in the upcoming parliamentary election. This is due to the fact that while both General Ershad and Dr Alamgir filed nomination papers after going for appeals, the EC allowed General Ershad to contest the election in 1996, but disallowed Dr Alamgir from doing so in 2008, although the Chamber Judge permitted him to contest. The two Justices gave opposing judgments about the timing of General Ershad's disqualification. In fact, both cases failed to settle the issue of when a convict-appellant becomes disqualified to contest in elections. In both cases, the Appellate Division also decided not to interfere in the decision of the EC, except in cases of coram non judice or malice in law, and treat it as an election dispute to be decided by the Election Tribunal. It is thus safe to assume that whether Begum Khaleda Zia would be able to contest the next parliamentary election mainly depends on the RO/Election Commission and the court is unlikely to interfere with their decision.
Dr Badiul Alam Majumdar is Secretary, SHUJAN: Citizens for Good Governance.