Grounds put forwarded in the writ petitions filed by Khaleda
Barrister Muhammad Nawshad Zamir writes for DOT :
BNP Chairperson Khaleda Zia on Sunday filed three separate writ petitions with the High Court challenging the legality of the Election Commission (EC) order that cancelled her all the three nominations for the upcoming general election. These three petitions were filed seeking High Court directive on the EC to accept her nomination papers so that Khaleda can run the polls from Bogura-6, Bogura-7 and Feni-1. The senor judge of a two-member High Court bench ruled in favor of BNP chief Khaleda’s participation in the upcoming elections while the junior judge disagreed with him on Tuesday.
Following the dissenting order on three writ petitions filed by Khaleda, the High Court judges have sent all the three appeals and the judges’ orders to the chief justice who will assign another High Court bench for final hearing and disposal of the petitions.
The grounds mentioned in the writ petition seeking the directive are as follows:
Khaleda has not committed any of the offences listed under article 12(1)(d) of the Representation of the People Order, 1972 (PO No 155 of 1972) which are offences relating to elections and election processes and as such the order of the returning officers rejecting the nomination of Khaleda are palpably illegal and unlawful,
The appeals of Khaleda being pending before appropriate fora, Khaleda has a right to participate in the parliamentary elections under the ruling of the Appellate Division of the Supreme Court of Bangladesh in A K M Mayeedul Islam v Bangladesh election Commission and others reported in BLD (AD)(1996) 204. Speaking for the Appellate Division, Mustafa kamal, J. accorded tacit approval to the view taken in 19 DLR 776 that the returning officer had rightly taken the view that because of pendency of appeal against several convictions, the candidate would NOT be disqualified to contest in the ensuing election as the orders of conviction had not reached finality. In the 19 DLR 776 reported case the Dacca High Court in Serajul Haq Chow v. Nur Ahmed Company held that the disqualification would operate when the conviction or sentence became final either on appeal or on expiration of the limitation period of filing of appeal with the result that the execution of sentence become final;
The cancellation of the nomination paper of Khaleda pre-supposes judgements of affirmance of conviction and sentence of Khaleda by the appellate courts in that that Khaleda is barred from running an election on the basis of a conviction which may be overturned by the appellate courts. Returning officers by cancelling the nomination paper of Khaleda has deemed that Khaleda’s convictions has reached finality and therefore her nomination papers were cancelled;
The cancellation of the nomination paper of Khaleda by the returning officers is a wrongful attempt to interpret article 66 of the constitution which power is only accorded to the Supreme Court of Bangladesh under the constitution. Article 66(2)(d) of constitution stipulates that 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. The returning officers by cancelling the nomination paper of Khaleda has ignored the legal principle that appeal is continuation of the trial and unless an appeal reaches finality, there is no scope for article 66 of the constitution to kick in;
The cancellation of nomination by Khaleda is an epitome of non- application of mind by the returning officer. The returning officers have ignored relevant considerations and have taken irrelevant considerations into account. The disqualification under Article 66(2)(d) of the Constitution of Bangladesh does not apply unless and until the conviction and sentence becomes final by the verdict of the highest appellate forum, the contrary direction given by the Election Commission to the returning officers and the rejection of nomination paper of Khaleda pursuant thereto militates against such understanding and judicial precedents;
The direction of the Election Commission to the returning officers to reject the nomination papers of convict candidates without them having obtained stay of their conviction and sentence and rejection of the Khaleda’s nomination pursuant to such direction being contrary to the decisions of the apex court as reported in 19 DLR 776 and 48 DLR (AD) 208, and the precedents of allowing convict candidates to contest in elections pending their appeals against the conviction and sentence, the impugned direction of the Election Commission is liable to be declared illegal, without lawful authority and of no legal effect;
There is a well settled principle of law that an appeal is a continuation of the trial as has been held in a catena of judicial decision including those reported in AIR 1995 HP 130, Manu/WB/0043/2013, 2012 (3) PLJR 207 and (2010)ILR 1 All26. As such, the disqualification under Article 66(2)(d) of the Constitution of Bangladesh does not apply during pendency of the appeal against conviction and sentence;
Returning officers have misinterpreted the provisions of Article 66(2)(d) and acted with malice in law
By allowing some persons who are similarly situated like that of the petitioner, the returning officers have violated article 27 of the constitution. Moreover, the returning officers have violated the decision of the Appellate Division of the Supreme Court of Bangladesh reported in 48 DLR (AD) 208;
The right to participate in public affairs guaranteed by the ICCPR (International Covenant on Civil and Political Rights), to which Bangladesh is a signatory, is the cornerstone upon which the entire international human rights order for elections is built. Participation entails an obligation to guarantee that all citizens have the right and the opportunity to partake in public affairs, through political parties, civil society organizations and other citizen initiatives. The UDHR stipulates the universal right to participate in government, directly or through freely chosen representatives. The ICCPR places elections even more firmly at the core of the right to participate. Joint reference to ‘right’ and ‘opportunity’ to participate obligates the state to take positive action to provide services and infrastructure to allow for the effective exercise of the right to participate. This right is also enshrined in the ICERD, CEDAW, MWC and CRPD.
In GC 25 [UN Human Rights Committee (HRC), CCPR General Comment No. 25: Article 25 (Participation in Public Affairs and the Right to Vote), The Right to Participate in Public Affairs, Voting Rights and the Right of Equal Access to Public Service, 12 July 1996, CCPR/C/21/Rev.1/Add.7, available at: https://www.refworld.org/docid/453883fc22.html [accessed 4 December 2018], the CCPR defines ‘public affairs’ as ‘a broad concept, which relates to the exercise of political power, in particular the exercise of legislative, executive and administrative powers. It covers all aspects of public administration, and the formulation and implementation of policy at international, national, regional and local levels’.
As GC 25 notes, the right to participate is an individual right, the violation of which gives rise to claims under ICCPR’s first Optional Protocol.
Similarly, GC 25 indicates that the ‘allocation of powers and the means by which individuals exercise the right to participate in the conduct of public affairs protected by article 25 should be established by the constitution and other laws’. The CCPR further elaborates that ‘[p]articipation through freely chosen representatives is exercised through voting processes which must be established by laws’. Direct participation, as developed in GC 25, covers the exercise of legislative or executive mandates, and participation in referendums and popular assemblies.
The UN human rights committee ruled on 17 August 2018 that Brazil’s imprisoned former president Mr. Luiz Inácio Lula da Silva cannot be disqualified from presidential elections because his legal appeals are ongoing. The committee issued the finding following an urgent request filed by Lula’s lawyers on 27 July. In a statement, the panel “requested Brazil to take all necessary measures to ensure that Lula can enjoy and exercise his political rights while in prison, as (a) candidate in the 2018 presidential elections”. Lula, a two-term former president who is serving 12 years time behind bars for corruption, is currently leading the polls for the October vote. The committee said Lula cannot be barred as a candidate “until his appeals before the courts have been completed in fair judicial proceedings”. The Geneva-based committee monitors a member state’s compliance with the international covenant on civil and political rights, as well as a supplementary text called the optional protocol. Because Brazil has ratified both texts, it is technically obligated to abide by the committee’s findings. Committee member Olivier de Frouville told AFP Lula’s laywers had asked for urgent action on three issues: that he be immediately freed from jail, that he be granted access to the media and his political party, and that he be allowed to run in the election. The panel rejected the first request but sided with Lula on the two other issues. The statement added the Brazilian government should ensure “that Lula can enjoy and exercise his political rights while in prison, as candidate in the 2018 presidential elections.” “This includes having appropriate access to the media and members of his political party,” the committee said. The press note of the UN Human Rights Committee published by the OHCHR is as follows:
The UN Human Rights Committee has requested Brazil to take all necessary measures to ensure that Lula can enjoy and exercise his political rights while in prison, as candidate in the 2018 presidential elections. This includes having appropriate access to the media and members of his political party. The Committee also requested Brazil not to prevent him from standing for election in the 2018 presidential elections, until his appeals before the courts have been completed in fair judicial proceedings. The technical name for this request is “interim measures” and these relate to his pending individual complaint which remains before the Committee. This request does not mean that the Committee has found a violation yet – it is an urgent measure to preserve Lula’s right, pending the case consideration on the merits, which will take place next year.
Although this response is being provided through the UN Human Rights Office, it is a decision of the Human Rights Committee, which is made up of independent experts. This response may be attributed to the Human Rights Committee. [https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=23464 – accessed on 5 December 2018]
Bangladesh being a signatory to the ICCPR should be bound by the precedents of the UN Human Rights Committee and must allow Khaleda to run in the ensuing 11th national parliamentary elections.
The author is an Advocate of Bangladesh Supreme Court and has filed the appeal application with the EC on behalf of BNP chairperson Khaleda.
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