Staff Reporter :
The senior judge of a two-member High Court Bench on Tuesday ruled in favour of BNP Chairperson Khaleda Zia’s participation in the upcoming election, while the junior judge disagreed with him.
Following the dissented order on three writ petitions filed by Khaleda Zia, the High Court judges will now send all the three appeals and the judges’ orders to the Chief Justice who will assign another one-member High Court Bench for final hearing and disposal of the petitions.
Khaleda filed the writ petitions challenging the Election Commission’s decisions upholding the Returning Officers’ cancellation of her all three nomination papers Bogura-6, Bogura-7 and Feni-1.
Justice Syed Refaat Ahmed, the senior judge of the Bench, directed the EC to accept the nomination papers of Khaleda Zia and allow her to contest in the December 30 general elections.
The judge also issued a rule asking the EC to explain as to why its decision on the nomination papers of Khaleda Zia should not be declared illegal.
Meanwhile, Justice Md Iqbal Kabir, the junior judge of the Bench, disagreed with the senior judges’ order.
Khaleda Zia, a former Prime Minister, on December 9 filed the three separate writ petitions also seeking HC directives on the EC to accept the nomination papers so that she can run from Bogura-6, Bogura-7 and Feni-1.
In the petitions, she also prayed to the HC to issue a rule asking the EC as to why its decisions on her nomination papers should not be declared illegal, Barrister Kayser Kamal, a lawyer for Khaleda, told the reporters.
Citing from the petitions, Zainul Abedin, a lawyer for the BNP chief, told that the EC rejected Khaleda’s appeals on the grounds of violating the electoral code of conduct.
But the question of Khaleda’s violating the code does not arise as she has been in jail since February, the counsel pointed out.
On October 29, Khaleda was convicted and sentenced to seven years’ rigorous imprisonment by a special court in Dhaka in Zia Charitable Trust corruption case. Khaleda landed in jail being sentenced to five years’ imprisonment in Zia Orphanage Trust case by the same court on February 8. The High Court later extended her jail terms in the case to 10 years.
A High Court Bench last week made an observation that an accused sentenced to more than two years in jail cannot contest in an election even if an appeal against the sentence remains pending. The Appellate Division of the Supreme Court did not interfere in the observation.
Khaleda’s lawyer A J Mohammad Ali told the High Court that the EC was not performing independently and the Returning Officers were being directed by the government.
The lawyer added that if the EC was independent, its decisions would have been different, as it happened to the nomination papers submitted by ruling Awami League-led alliance candidates— Muhiuddin Khan Alamgir, Pankaj Debnath and Nazmul Huda.
He argued that Article 66(2)(d) of the Constitution stipulates that if someone is convicted and sentenced to more than two years’ imprisonment for moral turpitude, he or she may not be eligible to contest the election. Since the appeals (against the convictions of Khaleda in two cases) are pending, the convictions did not reach the finality, he said.
Mohammad Ali cited the Supreme Court’s earlier decision mentioned in 48 Dhaka Law Reports and said if someone was guilty or convicted, he or she could participate in polls.
Attorney General Mahbubey Alam opposed the writ petitions saying that Khaleda Zia cannot be allowed to contest the election as per Article 66(2)(d) of the Constitution as she has been convicted and sentenced to 10 years and seven years’ imprisonment in two separate corruption cases.
Article 66(2)(d) stipulates, “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 of not less than two years, unless a period of five years has elapsed since his release.”
