Khaleda's prospect to join polls: Law, court decisions unclear

Khaleda’s prospect to join polls: Law, court decisions unclear


Dhaka, Feb 10 – It is the question in people’s mind whether BNP chairperson Khaleda Zia will be eligible for the next general election after being jailed for five years. Legal and election experts have no clear answer to it as they think it fully depends on the apex court.Some of them said the conviction will remain suspended if the BNP chief files an appeal against the lower court verdict while some others defer with them saying it is an ‘ambiguous matter’.
However, some of them say the apex court may grant her bail and allow her to take part in the next polls as some political leaders earlier had been ministers and remained MPs after being convicted by lower courts.
On Thursday, a special court of Dhaka convicted Khaleda and sentenced her to five years’ imprisonment in the Zia Orphanage Trust graft case.
As per Article 66(2) (d) of the Constitution, anyone sentenced to jail for a term not less than two years for ethical or moral misconduct, and until five years have elapsed since the date of his/her release shall be disqualified for the contesting the parliamentary election.
Law Minister Anisul Huq said there are two verdicts of the Supreme Court and the High Court in this regard. “One verdict says until the disposal of the appeal the case proceeding is considered as incomplete and the person is not convicted. So, the convicted person will be able to take part in polls.”
However, the other verdict says the convicted person cannot take part in the national election with an appeal against the lower court conviction. “So, the apex court and the Election Commission will decide it now.”
Former law minister Barrister Shafique Ahmed said a person convicted for minimum two years in a criminal case will not be eligible for the national election until the completion of five years of his/her release.
Asked whether she will be eligible for polls if the High Court suspends her conviction after appeal, he also replied in the negative said suspension means not the cancelation of the punishment.
He, however, said if Khaleda appeals to the apex court and it permits her to submit nomination, she will be able to contest the polls.
Khaleda’s counsel and former law minister Moudud Ahmed said appeal against the lower court conviction means continuation of the trial.
“After appeal, the High Court is the first court, and then the Supreme Court’s decision will be the final. So, until the final decision is given by the Supreme Court, she will be able to take part in the polls.”
He, however, said it is a matter of interoperation as there are two types of decisions in this regard.
“As per the tradition, a convicted person can join the election until the final judgement of the Supreme Court is delivered. But after 1/11 political changeover, it was said in the emergency rules that until the final disposal of the case, a convicted person won’t be entitled to get bail and participate in the polls,” Moudud observed.
But, he said, now the country is not under the emergency rule and the 9th parliament did not ratify it. “So, we think, there’s no barrier for Khaleda Zia to getting bail and taking part in polls.”
Eminent jurist Dr Shahdeen Malik said there is no clear or final decision of the apex court in this regard.
He said it now largely depends on the apex court whether it will allow Khaleda to join the election nor not.
Malik, however, said the ambiguity over the matter will be cleared through the legal battle over the case.
Election expert Dr Tofail Ahmed said Khaleda has the scope for filing an appeal with the High Court against the lower court. “Now it is the matter lies in the court whether it’ll give her bail and join the next polls.”
He said there is some instances that after being convicted by the lower court some political leaders like Mohiuddin Khan Alamgir become minister and preformed as minister or MP after filing appeals with the apex court against their conviction.
He also said there is no instance that any political leader was barred from taking part in the polls after getting convicted by the lower court.
“Personally, I think, if the court functions independently and neutrally and the government doesn’t interfere in the court, Khaleda will be able to contest the polls. So, it’s largely depends on the government’s goodwill and the court’s independent decision,” Dr Tofail said.
Former Election Commissioner Shah Nawaz said, “Khaleda Zia will be able to take part in the election if the apex court doesn’t give any negative order after her appeal against the lower court verdict.”
Nawaz, also an ex-district judge, said the BNP chief’s case will remain pending when she will move to the High Court challenging the lower court judgement.


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