BNP Chairperson Khaleda Zia cannot contest the upcoming parliamentary election as the Supreme Court yesterday upheld the High Court ruling barring a person sentenced to more than two years in jail from taking part in elections even if an appeal against the conviction is pending.
Hours after the top court shut the door on her polls bid, Khaleda, who has been in jail since February 8 upon her conviction in a graft case, filed nomination papers to contest from Bogura-6, 7 and Feni-1 constituencies.
On her behalf, BNP men submitted the nomination papers to the offices of the returning officers (ROs) concerned in Bogura and Feni from where she had contested national polls in the past.
Scrutinising the nomination papers on December 2, the ROs can declare her disqualified for the upcoming election in the light of the apex court order.
Amid uncertainty over her polls bid, the BNP yesterday fielded back-up candidates in the three constituencies. In the afternoon, party Secretary General Mirza Fakhrul Islam Alamgir filed nomination papers for contesting the polls from Bogura-6 constituency.
Khaleda's participation in the polls became uncertain after a special court convicted and sentenced her to five years in prison in February in the Zia Orphanage Trust graft case.
She filed an appeal with the HC, challenging the lower court verdict. But she lost the legal battle at the HC, which on October 30 rejected the appeal and enhanced her punishment to 10 years in jail from five years.
On October 29, the same special court sentenced her to seven years' imprisonment on the charges of abusing power in her second term as prime minister (2001-2006) in collecting and spending Tk 6.52 crore for different purposes, which include purchase of 42-katha land in the capital to set up a charitable trust after her late husband's name.
The BNP tried to clear up uncertainty over Khaleda's polls bid by filing two appeals against both verdicts delivered by the HC and the special court. The appeals were filed on November 18 and 19 with the SC and the HC.
But Tuesday's HC ruling came as a shock to the party leaders.
In response to five petitions filed by five BNP leaders for staying their sentences, the HC rejected their pleas and ruled that a convict sentenced to more than two years in jail cannot contest elections even if an appeal remains pending against his or her conviction.
The HC gave the ruling, citing article 66 (2) (d) of the constitution that reads, “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.”
Dr AZM Zahid Hossain, one of the five BNP leaders, filed a petition with the SC the same day, challenging the HC order and seeking a stay on his sentence.
In 2008, a special court sentenced him to 13 years' imprisonment in a corruption case filed by the Anti-Corruption Commission.
Yesterday morning, a seven-member SC bench headed by Chief Justice Syed Mahmud Hossain refrained from interfering in the HC order, and passed "no order" on the petition.
This means the SC refused to stay the HC order and therefore, the HC ruling has been upheld, Additional Attorney General Murad Reza told The Daily Star.
Khurshid Alam Khan, counsel for the ACC that filed both cases against Khaleda, echoed the same view.
They said that following the SC order, Khaleda as well as the other convicts, who were sentenced to more than two years in jail, cannot contest the upcoming polls.
Khurshid said Zahid has a scope for moving a leave-to-appeal petition before the SC after receiving the full text of Tuesday's HC order.
If Zahid does so, the apex court may assess the HC order, the lawyer said, adding that the HC ruling will remain in force until the SC passes an order on the leave-to-appeal petition.
Zahid's counsel Rokanuddin Mahmud told this newspaper that the SC's “no order” means the order is neither in his client's favour nor against him.
The BNP leader yesterday filed nomination papers for Mymensingh-4 constituency.
If the RO rejects his nomination papers, he would approach the SC and challenge the rejection, said his lawyer.
At the SC hearing on Zahid's petition, Rokanuddin said the apex court has the authority to suspend the conviction and sentence as the Indian Supreme Court suspended conviction and jail sentences of some people and allowed them to contest elections there.
He also argued that the SC had allowed Awami League leader Muhiuddin Khan Alamgir to contest the 2008 general election though he was convicted and sentenced to 13 years' imprisonment in a corruption case like that of his client.
Attorney General Mahbubey Alam opposed the petition and argued that the HC rightly delivered its order in line with Article 66(2) (d) of the constitution.
Later, talking to reporters at his office, Mahbubey said Khaleda, who is now in jail after being convicted and sentenced to 17 years' imprisonment in two corruption cases, cannot contest the upcoming election following the SC order.
After Tuesday's HC order, the attorney general came up with an explanation of the Article 66(2) (d) of the constitution.
He said the convicts will have to wait for five years for contesting the elections even if their convictions and sentences are scrapped by a “competent court”, as the word “release” mentioned in the article means acquittal from a case.
Yesterday, the attorney general reiterated his opinion.
Former law minister Shafique Ahmed, however, disagreed with him.
"When a court scraps the conviction and sentence of a person, he or she will be treated as innocent and need not wait for any period for contesting elections," he explained.
Talking to this newspaper, BNP Standing Committee Member Moudud Ahmed said, "We still hope the party chief will be able to contest the election."
This is the first time the BNP is contesting the polls without Khaleda's active participation in electioneering since she joined politics in 1982 after the assassination of her husband and party founder Ziaur Rahman.
Under her leadership, the party took part in a vigorous movement against military dictator HM Ershad in the 80s and contested five parliamentary elections since 1991. She led her party to victory in three general elections.