Justice Khairul's verdict and Maya's ministership

Whether a sentenced person can retain his office as minister and remain a member of parliament, is intrinsically dependent on the characteristic of the state.

For a government that does not have an iota of belief in the rule of law, it is difficult to accept a court ruling, it is just not realistic.
A dilemma exists among enlightened circles concerning separation of the court and separation of power. The lower court is the judicial court. If this court's independence is not accepted, it is is not given independence, then the door to the rule of law remains shut.
Whether anyone admits it or not, a serious conspiracy prevails about the independence of the lower court.
There is an anti-people section of the bureaucracy which, following this independence, in the words of Dr. Kamal Hossain, "is desperate after losing power and status and is the now stabbing this initiative in the back. It is good news for this ailing bureaucracy to retain a sentenced person as a minister, they feel they are the ones who keep the government in power, who run it."
However, the fact that there is a debate over whether a person condemned under the criminal law can remain a minister or not, and experts differ over the issue, itself indicates that this does not tally with Bangladesh's very own concept of democracy and rule of law, which prevails at present.
The ideology of the 1972 constitution ruled out condemned persons from retaining their office of minister or membership of parliament, but that politics no longer exists in the country. There is no aspiration in society either of reviving this as of now.
We should admit this shortcoming, then we have to proceed towards a solution. But if certain quarters refuse to admit this shortcoming, but boast about it and even quote from the law, then it is indeed unfortunate and pitiful.
But a long-suffering writer pointed out to this author, this interpretation will hold significance for the BNP in the coming days of politics, A few persons in the ruling party will have to get over their love for Maya.
But it's the funeral for the BNP, it's leaders won't even be able to contest in the election. If a person sentenced by the lower court cannot appeal and cannot be a candidate, then the government's political opponents may well be most apprehensive. This can hardly be denied. But there is no way that the justification of "democratic practice" can be accepted, based on a twisted interpretation of the constitution.
Like those presently in power, the BNP too does not believe in the separation of executive and judiciary, or the independence of the judiciary. The lower system continues, riddled with errors and faults. And yet the fate of most criminal acts is decided there. The common people accept this. Those we have had as people's representatives from 1990 onwards, -- Awami League and BNP -- have been systematically opposed to resolving these shortcomings of the judiciary, so why should they not also be subject to this judicial system? Why will they interpret the constitution at their own will and have condemned persons continue as ministers and why should we accept this?
We will naturally want them to rid the judiciary of all errors, we will not want them to reject the verdict of the lower court and set a bad example. Many citizens, including government officials, are affected by the verdicts of the lower court, so why not Maya? Then it should not apply to anyone.
Maya's issue is not a personal matter. It is a matter of ethics at the highest seat of the state. What occurred in the case of Maya, occurred in the case of Haji Selim, too. Last January the Appellate Division ruled out the High Court verdict which had ruled out the verdict of the lower court. If Maya actually does not lose his place in the cabinet, if it is not possible to annul Haji Selim's membership of parliament, then the ruling party should amend the article. This will lessen the deceit and it can be accepted. But a dishonest interpretation of the constitution cannot be accepted. The BNP will also have to declare, we have all created a state where a convicted person will remain a minister or our nascent democracy may be hurt!
One of the Anti-Corruption Commission (ACC) commissioners, Mohammed Shahabuddin, spoke to journalists on 28 June, saying that ACC lawyer Khurshid Alam Khan's view on Maya's ineligibility was morally correct. Again, his personal view is that legally speaking, Maya can retain his office as minister. What his words amount to is, the 'law' in this regard is unethical. But the truth is that the prevailing law is ethical. What is unethical is its explanation and application. Despite the Appellate Division's admonition about withdrawing the case, why did Shahabuddin want to withdraw it? Rather than give his uncalled for personal views, the ACC commissioner should explain this first.
Justice ABM Khairul Huq strongly feels that any person guilty of moral turpitude will automatically be considered ineligible as member of parliament. Lame excuses of the appeal cannot retain his position as a minister or lawmaker. As he says, the authors of the constitution made this law to separate the MPs from the general people. Those running the government may be absolved or they may not be, but if their reputation is questioned because of the conviction, they will be considered ineligible.
Justice Khairul Huq has been subject to attention for many reasons. His ruling on the thirteenth amendment case blackened him in the BNP's eyes, but he is respected by many in the ruling party. The politicians have failed to view his judicial expertise outside of their own political considerations. This is particularly true in the case of the ruling party. Not everyone may agree with his judicial views, but he has many epoch-making decisions which the ruling party does not take to very kindly. Needless to say the ruling party and their allies were thrilled with the abolition of the caretaker government and the fifth amendment. If you question this judge's knowledge based on these two verdicts, you will get an exuberant response from the ruling party. But if you question the same person's recommendations as chairman of the law commission, the response will be almost tragic. The government has not considered these recommendations worth implementing whatsoever. Another poignant example is the 20-page interpretation he gave of Article 66 in the Janata Tower case. If that is to be accepted, then Maya cannot remain minister. But you will not find anyone in the ruling party or their allies who can say that they have actually read that verdict.
The morality of the entire cabinet is now tied to the question of Maya's ministership. We have to see this in light of Justice Khairul's verdict. It is only he who, for the first time, interpreted sub-clause 2d of Article 66. It states: "A person shall be disqualified for election as, or for being, a member of Parliament who 'has been on conviction for a criminal offence involving moral turpitude, sentenced to imprisonment for a term not less than two years unless a period of five years has elapsed since his release.'"
In 2001, the Awami League's Attorney General KS Nabi said in the High Court, 'on conviction' should be read as 'conclusively convicted'. If there is right for appeal, it will go up to the review. Justice Khairul rightly rejected this. This mistaken conception has emerged out of the courts and become quite popular. It has confused many lawyers and media persons too.
Justice Khairul's reasoning is, the constitution made constrictive provisions. If there is a two-year conviction, it will remain intact until the appeal is approved. So what is an appeal is made. Even if an appeal suspends a sentence, there is no escape from that sword of the constitution. Now we see the Appellate Division hasn't suspended the sentence. It has been instructed to hold the hearing anew. The sentence will be carried out, until and unless it is finally dismissed. Tamil Nadu's chief minister Jayalalitha established exactly the same example recently. The election commission should stiffen its backbone and follow Khairul's ruling in an urgent basis, vacate two seats of the parliament and declare by-elections.
In Himachal of India, Rakesh Singh took bail from the Supreme Court in 1990 and was elected. Later his candidature was cancelled through a writ and the Supreme Court stated that because they gave Rakesh bail and suspended his sentence, he cannot be candidate. Justice Khairul did not just use this example, he went on to say that Bangladesh parliament cannot make any law outside of this.
At the moment no one can qualify being a minister or member of parliament if convicted. No matter how high a position a person may hold, it is not constitutional for this decision to rely on anyone. That is why I say, Maya is not a minister because he is not a member of parliament. And Haji Selim's seat is vacant too.
Mizanur Rahman Khan: journalist
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