Proposed law seeks election ban for those involved in disappearances, genocide
The Electoral Reform Commission is preparing a draft law aimed at barring individuals accused of severe human rights violations from participating in elections.
The proposed legislation includes provisions to disqualify those accused of crimes against humanity, such as extrajudicial killings, genocide, enforced disappearances, and inhumane torture, from contesting national parliamentary elections.
This was learnt from the sources in the Reform Commission. The summary of their recommendations on the electoral system also references this proposal. The commission is currently working on drafting the law and plans to submit it to the government. While the draft has yet to be finalised, the commission aims to complete and present it by 31 January.
If such a law is enacted, it could render Prime Minister Sheikh Hasina, who was removed from power during the mass uprising in July, along with members of her cabinet and numerous senior party leaders, ineligible to contest in the next election.
However, legal experts have raised concerns about potential misuse of the law, warning that disqualifying individuals based solely on accusations could lead to exploitation in the future.
What is in the current law
The current constitution outlines the eligibility and disqualification criteria for becoming a member of the National Parliament. Among the disqualifications, one stipulates that an individual cannot become a member of parliament if sentenced to a minimum of two years in prison for a criminal offense involving moral turpitude. This disqualification remains in effect until five years have passed after the individual’s release.
Another disqualification applies to individuals convicted under the Bangladesh Collaborators (Special Tribunal) Order of 1972. Additionally, the constitution states that anyone convicted under any law is considered ineligible to run for election. Based on this provision, the Reform Commission has decided to propose a new special law.
Under the existing rules, no one is disqualified from contesting elections until convicted. There is also precedent for individuals convicted in a lower court being allowed to run for office after appealing to the High Court.
However, the Reform Commission argues that a democratic transition following the fall of an authoritarian regime requires keeping criminals out of the political arena and holding them accountable.
Without such measures, they believe, the wounds inflicted by the previous regime may not fully heal. With this in mind, the commission is drafting a special law to address this gap, ensuring that action can be taken without waiting for a full legal sentence.
The proposed law would empower authorities to disqualify individuals from elections if they are formally accused of crimes against humanity. If the Tribunal’s investigation agency uncovers evidence of involvement in grave crimes such as extrajudicial killings, enforced disappearances, or inhumane torture, the accused person would become ineligible to contest elections. This provision would bypass the need to wait for a court verdict or sentence before implementing disqualification.
Reason behind the change
Several members of the Reform Commission told Prothom Alo that the reason behind this proposal lies in the gravity of crimes against humanity. The International Crimes Tribunal operates in accordance with international standards, and if its investigation agency finds the allegations credible, it signifies sufficient evidence of such crimes against the accused. Consequently, the commission has decided to include this provision in the draft of the proposed special law.
According to commission sources, a principled decision has also been made to disqualify individuals accused in investigations conducted by the Commission on Disappearances formed by the interim government.
Additionally, there is consideration of disqualifying individuals who are found guilty in primary investigations by the Anti-Corruption Commission (ACC) on charges of serious corruption or money laundering.
However, uncertainty remains regarding the inclusion of this provision in its current form. Further review is underway, and it is possible that the law may only disqualify individuals after a formal conviction.
The draft also includes a provision to declare anyone deemed a fugitive by a court as ineligible to contest elections. The Electoral Reform Commission believes that such a special law would help reduce corruption and abuse of power in politics.
Nevertheless, concerns have been raised about the fairness of disqualifying individuals based solely on accusations. Commission sources confirmed that this issue has been taken seriously and discussed extensively with domestic and international legal and human rights experts.
The consensus is that the proposed provision would not pose a problem because the crimes specified—such as crimes against humanity, enforced disappearances, and severe corruption—are exceptionally grave. Moreover, charges would only be brought if a preliminary investigation found credible evidence.
The head of the Electoral Reform Commission, Badiul Alam Majumder, stated to Prothom Alo that the recommendations were made after thorough research and consultations with experts. He emphasised that crimes against humanity are severe offences.
The proposal would allow individuals charged by the International Crimes Tribunal or implicated with credible evidence in investigations by the Commission on Disappearances to be declared ineligible for elections. The commission intends to draft this provision into a law so the government can enact it.
If such a law is enacted, the deposed Prime Minister Sheikh Hasina, her cabinet members, and a significant portion of the senior leadership of her party could become ineligible for the next election.
Two cases have already been filed against Sheikh Hasina in the International Crimes Tribunal, and similar cases against many ministers of the Awami League government and senior party leaders are under investigation.
If charge sheets are filed following these investigations and the special law comes into effect, they would be disqualified from contesting elections.
The government formed the Electoral Reform Commission on 3 October to prepare proposals for reforming the electoral system. On 15 January, the commission published a summary of its recommendations.
Key proposals include barring fugitive defendants declared by a court from running in elections, disqualifying individuals convicted in the International Crimes Tribunal from the start of their conviction, and declaring serious human rights violators ineligible under a special law. The commission is currently drafting this special law.
However, concerns have been raised about the fairness of disqualifying individuals before a court conviction.
Retired Justice MA Matin told Prothom Alo that while the government has the authority to enact such a law, disqualifying someone from elections without a court conviction based on evidence could be problematic.
*This report, originally published in Prothom Alo print edition, has been rewritten in English by Farjana Liakat