Barring convicts still unresolved

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It still remains unresolved whether an aspirant electoral candidate is disqualified from contesting in polls on conviction by a trial court for a criminal offence involving moral turpitude or the person is allowed to contest in polls as long as an appeal against the verdict is pending in a court, which might go on until the appeal is adjudicated in the Appellate Division of Supreme Court.

According to the country’s constitution, a person shall be disqualified from contesting in elections if he or she is convicted of a criminal offence involving moral turpitude and sentenced to imprisonment for a term of a minimum of two years, and unless a period of five years has elapsed since the individual’s release.

But a debate is still raging regarding interpretations of the expression ‘conviction’ as to whether it means conviction by a trial court or a final conclusive conviction after all appeals have been exhausted.

The Election Commission (EC) recently decided that a convicted person is not disqualified from contesting in polls while his or her appeal is pending in a court, but legal experts said a convicted person becomes disqualified on conviction by a trial court.

Before the 1996 parliamentary election the question was widely raised as former military dictator HM Ershad became a candidate in the poll while his appeal against his conviction for a criminal offence involving moral turpitude was pending in a court. He was convicted on June 7, 1993 by a trial court.

The matter came before the Appellate Division of Supreme Court in Moidul Islam vs Bangladesh Election Commission case, but the court stopped short of resolving the question by merely observing that since the matter was an election dispute it was for the EC to decide what should be the answer.

Ershad was elected a lawmaker through the June 1996 parliamentary poll, but later in 2000 his membership to the parliament was revoked as the High Court Division of Supreme Court upheld the trial court’s verdict.

After the High Court (HC) had upheld the trial court’s verdict against Ershad, the erstwhile parliament secretariat issued a gazette notification revoking his membership to the parliament, which was challenged by Ershad in the HC.

A two member bench of the HC upheld Ershad’s writ saying the parliament secretariat committed procedural misconduct in issuing the gazette notification.

The two judges of the HC bench however interpreted the matter of Ershad’s disqualification from elections quite differently in their observations.

In his writ petition against the parliament secretariat notification, HM Ershad claimed that he could not be disqualified until the conviction became final and conclusive in the apex court of the country.

Justice Joynul Abedin, citing some Indian decisions and the case of Serajul Huq Chowdhury vs Nur Ahmed Company, observed that a convicted person becomes disqualified from running in elections when the conviction becomes final and conclusive at the end of the appeal process.

On the other hand, Justice ABM Khairul Haque in his observation in the same case said a convicted person becomes disqualified from contesting in elections from the date of his or her conviction by a trial court for offences involving moral turpitude.

Ershad has become the lone instance of being elected a lawmaker despite being convicted of a criminal offence involving moral turpitude, and also of losing a membership to the parliament following upholding of the trial court’s verdict by the Appellate Division of Supreme Court.

Although the issue of convicted persons’ disqualifications from contesting in elections is yet to be resolved legally, the EC recently however decided to allow persons convicted for criminal offences involving moral turpitude to contest in polls while their appeals are pending in courts.

Following the EC’s decision, some persons convicted by trial courts for offences involving moral turpitude are currently campaigning for being elected to city corporation offices through the upcoming August 4 polls, as their appeals against the convictions are pending in courts.

Senior officials of the EC Secretariat said such convicted persons might be allowed to contest even in the next parliamentary poll while their appeals against the convictions are pending in courts, with the exceptions of convictions under the Emergency Powers Rules (EPR).

In his observation Justice Khairul Haque said HM Ershad was ‘actually disqualified’ from contesting in polls since his conviction by the trial court in 1993.

But he was not only allowed to continue his 1991 membership of the parliament after his 1993 conviction, but was also allowed to contest and be elected to the seventh parliament through the election held on June 12, 1996 in utter violation of constitutional provisions, Justice Khairul Haque asserted in his observation.

Despite being convicted by a trial court for offences involving moral turpitude HM Ershad continued to act as a lawmaker between 1993 and 1996 through filing an appeal against the verdict.

While his appeal was pending, Ershad again contested in the June 12, 1996 parliamentary polls and was again elected a lawmaker.

Finally, he could not contest in the 2001 parliamentary poll as the Appellate Division of Supreme Court also upheld the conviction by the trial court.

Former attorney general Mahmudul Islam also said a convicted person becomes disqualified from contesting in polls on his or her conviction by a trial court for criminal offences involving moral turpitude.

The former attorney general in his book titled ‘Constitutional Law of Bangladesh’ said in India the disqualification becomes effective on conviction by a trial court., while according to the provision of section 8 (3) of the Representation of the People Act of India, the disqualification becomes effective on conclusion of the appeal process only in cases of incumbent members of the parliament.

But in defence of its rather peculiar position on the matter, the EC of Bangladesh could only claim that it is ‘just following the laws’, adding that disqualifications only come into effect on conclusion of the appeal process, while in the same breath it said ‘it is not the job of the EC to give explanations of legal matters’.

Meanwhile, legal experts said there is no specific law that allows individuals convicted in criminal cases involving moral turpitude to contest in polls while the convictions are being appealed, but allowing such persons to contest in polls ‘has become a custom’ due to wholesale flouting of laws and convenient interpretations of those.

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