Burning questions on nominating the convicted
The returning officers could be accused of playing the step-mother in their accepting and rejecting nomination papers.
They rejected nomination of not just BNP chairperson Khaleda Zia in all three seats but also of a number of party leaders who were convicted in 2007-08 by a 'kangaroo court' (as termed by both ruling Awami League and main opposition Bangladesh Nationalist Party) despite their pending appeal. And yet, a ruling AL leader who was also convicted by the same 'kangaroo court', spent the full five-year term as the country's home minister.
Whether it is the election laws or the constitution, or the courts, nothing has changed, only the environment.
On 27 November, attorney general Mahbubey Alam gave a fresh interpretation of the constitution. If we have understood that correctly, then the relief and disaster management minister Mofazzal Hossain Chowdhury Maya's nomination paper should be rejected. Recently, he told newsmen that those who were convicted, with their appeals pending with the courts, cannot compete in the election and have to wait for five years after their release.
If we take this interpretation of attorney general into cognizance, Maya and Cox's Bazar MP Abdur Rahman Bodi's membership as lawmakers should already be cancelled or suspended. Replying to a question, Anti-Corruption Commission (ACC) senior lawyer Khurshid Alam Khan on Sunday said according to the AG's interpretation both Maya and Bodi would not qualify to be members of parliament or are no longer qualified. Disagreeing with the AG, Khurshid Alam Khan thinks Bodi's holding the post of MP is illegal. But the case of Maya and Bodi is not the same as Maya was recently acquitted and Bodi's appeal is still pending in the court, the lawyer pointed out.
The interpretation of an HC observation by AG Mahbubey Alam has been implemented in one way for the ruling AL and in another way for its rivals.
A convict sentenced to more than two years in jail cannot contest the election, even if an appeal is pending, according to an observation of HC.
It said, the convict can only run for candidacy after a five-year term after completion of the jail sentence.
A report of daily Ittefaq says that a division bench of HC comprising justice Md Nazrul Islam Talukder and justice KM Hafizul Alam said: 1. The constitution does not allow a convict to contest in an election. This is contrary to the main spirit of the constitution. 2. There is no law in the country to stay a conviction. 3. There is no scope of contesting an election if someone is not acquitted.
If some decisions of election commission over rejecting nomination papers stay unchanged, there are bound to be some convicts running in the election while some cannot.
Again, it did not happen in all cases of ruling AL. BNP finance minister Saifur Rahman's son Naser Rahman's nomination paper was accepted though his conviction was stayed.
Naser Rahman told us that his conviction handed down by a magistracy court in 2010 was suspended by the HC. The HC is yet to hear the appeal of the case.
There was debate in the returning officer's office over the Bhola-2 BNP candidate Hafiz Ibrahim. He was sentenced in two clauses of the ACC law. In February the High Court acquitted Hafiz of a 10-year sentence, but upheld a three-year sentence against him. In lieu of his jail term, the court fined him 5 million taka. SACC received a copy of the verdict a couple of days ago and have appealed against his acquittal. But his nomination remains valid.
Then 27 persons, including minister Maya, Hafiz Ibrahim, BNP leader Monjurul Ahsan Munsi of Cumilla, and former power and energy state minister Iqbal Mahmud Tuku were convicted for hiding information in their wealth statement and later acquitted in the High Court.
However, the Appellate Division ordered all cases to be resolved separately by verifying the merit of the complaints.
BNP’s Naser Rahman was also convicted in such a case. Monjurul Ahsan Tuku’s nomination survived like Naser Rahman. ACC filed leave to appeal against Tuku’s acquittal though.
The AG on 27 November said that due to the High Court verdict, there was no scope for the convicts to participate in the elections.
“All those who had applied for the suspension of the sentence were convicted. None of them were acquitted and five years have not passed since their release. If they were allowed to participate in parliamentary elections by suspending their punishment, it would be contrary to Article 66 (2) (d) of our constitution. That is why, the High Court rejected the plea by accepting our arguments. Khaleda Zia cannot take part in election for the next five years even if she is acquitted. "(Ittefaq, 28 November, 2018)
In fact, the attorney general has given his special interpretation in favour of special circumstances. But the interpretation of the law and the constitution cannot be manipulated under any circumstances.
The lawyer of Iqbal Mahmud Tuku in Sirajganj-2 argued on Sunday that his conviction was postponed in 2009 until the High Court disposed of his appeal. After that he was acquitted by the High Court. ACC appealed against this and the matter remains unresolved.
Cases against Mir Helal, Mir Naser and Tuku were awaiting hearing in two HC benches for hearing when their nominations were rejected on Sunday. If Naser Rahman and Manjurul Ahsan Munshi's nomination were upheld, why were theirs cancelled?
If the nomination of former establishment minister Aminul Haque was rejected on the given grounds, that is an inexcusable mistake.
The High Court acquitted him of two cases regarding his wealth statement and so-called militancy. The Appellate Division also upheld this judgement.
Aminul Haque mentioned this in his declaration along with necessary documents.
The ACC had filed a lawsuit against Aminul Haque on charges of stealing trees. But, it was rejected as a ‘false’ case during the present government. There was no other case after that. He revealed all the information about this and submitted photocopies of the documents. His nomination papers were cancelled just because he did not submit certified copies. Is this required by the law?
The flimsy reasons on the basis of which nominations have been cancelled, such as outstanding credit card and bill dues, resignation from local government posts, etc, indicated a biased stance. It is now to be seen what action the EC takes.
* This piece appeared in Prothom Alo print version and has been rewritten in English by Imam Hossain and Farjana Liakat