The talk of the town and most important question following the five-year imprisonment of BNP Chairperson Khaleda Zia is whether she can contest the upcoming parliamentary election or not as the Constitution stipulates two-year jail for moral turpitude as a disqualification for vying for such election.
However, legal experts
put forwarded two shades of opinions regarding the issue.
One section holds the opinion that the BNP chief cannot run for the general election after the over two-year sentence on conviction of graft, which is a moral turpitude, until the High Court Division of the Supreme Court stays the imprisonment.
The other section thinks Khaleda can take part in the polls until the Appellate Division of the Supreme Court confirmed the sentence passed by the trial court as contesting election is a constitutional right which cannot be curtailed until finalization of conviction.
The issue of contesting national polls by a convict of moral turpitude is a complex one as it has not yet been settled by the Supreme Court. As per the legal regime of the country, the Supreme Court and the Election Commission can settle it which was also echoed by Law Minister Anisul Huq.
Earlier, former President and Jatiya Party Chairman HM Ershad's case saw similar situation for moral turpitude. The military dictator was given over two-year imprisonment in a graft case by a lower court in 1993.
Prominent constitutional law expert Mahmudul Islam, also ex-Attorney General, wrote in his authoritative book, 'Constitutional Law of Bangladesh', "When HM Ershad became a candidate for the parliamentary election in 1996 while he was serving his sentence during the pendency of the appeal before the High Court Division, the question arose as to whether he was disqualified because of his conviction.
"The Returning Officer found his nomination paper valid and the matter came up before the Appellate Division in Mayeedul Islam v. Bangladesh Election Commission (1996, 48 DLR AD). But the court did not answer the question and merely observed that it was for the Election Commission to decide as an election dispute," he writes.
Mahmudul Islam opined that the conviction and over two-year imprisonment for moral turpitude by a trial court is a constitutional bar in contesting election.
Ershad was elected an MP by the contesting the June 12, 1996 polls while languishing in jail for his over two-year sentence. Even he could continue his parliamentary membership secured by winning in 1991 elections, though his sentence by lower court was passed in 1993.
As per Article 66 (2) (d) of the Constitution, an MP also become disqualified to retain his parliamentary membership if he or she becomes convicted for moral turpitude and is given minimum two-year imprisonment for such criminal offence. The Appellate Division in 2001 stated that Ershad's graft was a clear case of moral turpitude as he was the head of the country run under Presidential form of government.
Ershad could not contest the 2001 elections only as he was finally convicted by the Appellate Division, the apex court of the country.
Mahmudul Islam in his book wrote that as per the decisions of the Indian Judiciary, the disqualification of a candidate starts on conviction by the trial court and of an MP on conclusion of the appeal affirming such conviction.
However, a two-member bench of the High Court in 2001 could not agree on whether the conviction by a trial court attracts disqualification. It, however, annulled a gazette notification issued by Parliament Secretariat which stated that the seat of Ershad in parliament was vacated as the High Court in 2000 confirmed the sentence passed by the trial court.
Law Minister Anisul Huq told the reporters, "Now, the Appellate Division and the independent Election Commission can settle whether Khaleda Zia can contest the parliamentary elections following his sentence for moral turpitude. Because there are two verdicts- one by the Appellate Division and another by the High Court- giving different opinions on the issue."
Barrister Shafique Ahmed, former Law Minister, told The Daily Observer, "Khaleda Zia cannot contest elections unless the High Court stays the sentence passed by trial court. However, her parliamentary membership, if she gets elected, will be vacated if she is finally convicted by the Appellate Division."
Anti-Corruption Commission's chief counsel at Supreme Court Khurshid Alam Khan, said, "The BNP chief cannot vie for elections until the suspension of the lower court sentence." He said that it depends on legal interpretation whether the sentence against Khaleda Zia could be suspended.
Khaleda's counsel and Supreme Court Bar Association President Zainul Abedin, told this correspondent, "As contesting election is a constitutional right, it cannot be curtailed by a mere conviction of trial court. Because the matter is not settled until the Appellate Division, the top court of the country, gives its order."
He said that Khaleda would file an appeal with the High Court to turn down the lower court verdict. "As appeal is a continuation of the process of the case and the Appellate Division is yet to confirm the conviction, the BNP chairperson can contest election," Zainul said. Barrister Jyotirmoy Barua echoed with the view.
Zainul, also a vice-chairman of BNP, said, "Election is still far away as it would need about one year. In the meantime, many changes can take place. Khaleda Zia's sentence can be annulled by the High Court."
He said they would petition for a High Court stay on the sentence and bail of the BNP Chairperson
Law Minister Anisul said Khaleda has to file appeal, if she wants, within 60 days after getting certified copy of the lower court verdict as per law.
