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Dhaka Tribune

‘Khaleda cannot contest election even if sentence stayed’

He made the remarks following a High Court order that said people sentenced to over two years in jail cannot contest the elections, even if their appeal is pending

Update : 27 Nov 2018, 04:12 PM

Jailed BNP Chairperson Khaleda Zia will not be able to contest the upcoming 11th general election even if she successfully appeals her sentences in two graft cases, the attorney general said on Tuesday.

Mahbubey Alam also said Khaleda - sentenced in February and October to a total of 17 years behind bars - would have to wait five years after the conclusion of her jail terms to contest an election. 

His remarks followed a High Court order barring anyone from standing in the polls who has been sentenced to over two years in jail by a lower court in any graft case and who has an appeal pending.

“The BNP leaders’ plea said they were sentenced in corruption cases and were on bail, but they cannot take part in the upcoming general election if their convictions are not stayed,” the attorney general told reporters at his office on Tuesday.

“In the hearing I said the penal court, especially the appeal court, can most certainly suspend their sentence - but there can be no suspension of the conviction,” he added.

Article 66 (1) (d) of the constitution states that a person shall be disqualified from the election if, on conviction for a criminal offence involving moral turpitude, they are sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since their release.

The attorney general said: “Those who made the appeal are all convicts, and they have not been released from their convictions. Five years have also not passed since their sentence. 

“At this point, if their convictions are stayed and they are allowed to take part in the election, that will be a violation of our constitution.

“Therefore the court accepted our plea and dismissed their appeal. I believe that this means there are no more opportunities for convicts to take part in the election.”

BNP has nominated its party chairperson Khaleda Zia in three seats: Bogra 6, Bogra 7 and Feni 1.

Also Read- What are Khaleda’s options now?

The High Court in its observation on Tuesday said convicted people cannot contest polls even if a higher court stays the sentences handed to them by the trial courts.

However, if the Appellate Division stays or scraps any person’s sentence, there will be no bar for them to take part in the election.

The High Court bench of Justice Md Nazrul Islam Talukder and Justice KM Hafizul Alam made the observation after scrapping five BNP leaders’ pleas challenging the trial courts’ verdicts in corruption cases.

Lawyer Md Khurshid Alam represented the Anti-corruption Commission and the state was represented by attorney general Mahbubey Alam and deputy attorney general AKM Aminuddin Manik.

The attorney general said the court’s observations will be applicable to the BNP chief.

“Of course; this is a constitutional provision,” he said. “There are two conditions here: if someone is sentenced for two years, and if five years have not passed since the end of their sentence. For Khaleda, both the conditions apply. No court can ignore these constitutional barriers with a verdict.”

Mahbubey Alam said the Appellate Division or High Court are based on the constitution. 

“They (BNP) have to abide by the constitution therefore no court can ignore this,” he said. “If someone appeals against this order, the state’s submission will remain the same. We will tell the court it cannot ignore the constitution.”

BNP chief Khaleda was first jailed in February for five years in the Zia Orphanage Trust corruption case, although the High Court later doubled the sentence. The former prime minister was also sentenced to seven years’ imprisonment in another corruption case in October.

Asked if the Appellate Division can suspend her convictions, the attorney general said: “I cannot tell what the Appellate Division will do. My submission is on the constitution.”

Mahbubey was then asked by reporters why the precedent of HM Ershad, Mohiuddin Khan Alamgir and Mofazzal Hossain Chowdhury Maya - who all contested an election with stay orders on their convictions - would not be applicable to others. 

“There is a Supreme Court verdict on Ershad (and) his parliament membership was cancelled,” he said. “I cannot tell if the same submission was made in the cases of Dr Alamgir and Maya.” 

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