While scrutinising applications for candidacies in the August 4 polls to four city corporations and nine municipalities, the Election Commission (EC) is simultaneously following the 'traditional custom' and the stringent Emergency Power Rules (EPR).
The 'custom' has been to allow individuals convicted in criminal cases to contest in polls while their convictions are at the appellate stage, while EPR strictly bars convicted individuals from contesting in polls even if the convictions are beingappealed.
In defence of its rather peculiar position on the matter, the EC claimed that it is 'just following the laws'.
But eminent jurists said there is no specific law that allows individuals convicted in criminal cases to contest in polls while the convictions are being appealed, but allowing such persons to contest in polls 'has become a custom'.
They said the EC is not following the constitution that bars convicted individuals from contesting in polls.
Meanwhile, the EC yesterday at a meeting discussed the legal dilemma faced by returning officers (RO) in scrutinising the applications, and instructed them to follow both the 'custom' and EPR. sources in the commission said.
By that instruction, the commission in effect ordered its ROs to allow individuals convicted under regular penal code to contest in elections if their convictions are at the appellate stage, but to disqualify individuals convicted under EPR even if the convictions are beingappealed.
Emerging from the meeting yesterday, Election Commissioner Brig Gen (retd) M Sakhawat Hussain said if a person is convicted of corruption by a trial court under EPR, he or she will be disqualified from contesting in the polls.
According to EPR, if a convicted person files an appeal against the conviction, he or she will still remain disqualified from contesting in polls until adjudication of his or her appeal against the verdict.
"But if an individual is convicted of corruption under the regular law. he or she may contest in the elections through filing an appeal against the verdict," the election commissioner said.
"During the scrutiny of applications, the commission will look into the cases to ascertain who were tried and convicted under EPR and who were convicted under the ordinary law," Sakhawat added.
The 'custom' allows individuals convicted of corruption to contest in parliamentary and local government polls while the convictions are being appealed, until the Supreme Court upholds the convictions.
But according to the constitution, a person shall remain disqualified from contesting in elections if he or she has been convicted for a criminal offence involving moral turpitude and sentenced to imprisonment fora term of no less than two years, until a period of five years has elapsed since his or her release.
According to the legal experts, there is no scope for convicted individuals to contest in polls while the convictions are being appealed, although the contrary has been the 'custom'.
"The problem is with the Election Commission that they are not following the constitutional bar restraining convicted persons from contesting in polls. The so-called custom of allowing the convicted to contest in polls while the convictions are being appealed, cannot over ride the constitutional embargo," Justice Ghulam Rabbani, a former judge of the Appellate Division of Supreme Court, toldThe Daily Star yesterday.
Rabbani recently also said the legal community was hearing many strange arguments, 'but legally a convicted person is a convicted person, and it does not matter whether he or she is convicted under the regular penal code or EPR'.
"The Election Commission should read the provision in the constitution and stop looking elsewhere. including any custom which might have overridden the provision of the constitution in the past. I would again request the Election Commission to notice that although laws depend on simple logic, they certainly don't operate on the basis of twisted arguments," Rabbani quipped.
Echoing the justice, another jurist also a counsel for the EC Shahdeen Malik said an interpretation of the relevant regular law exists which allows convicted individuals to contest in polls while adjudication of appeals against the convictions are pending, but EPR prohibits such participation even when appeals are pending.
"Given the importance of ensuring that persons with questionable past and criminal convictions by trial courts are not allowed to participate in polls, they should not be allowed to contest even when their appeals against the convictions are pending,' Malik toldThe Daily Star.
— Ab an analogy tie mentioned (haF govemment officials are dismissed upon convictions, and appeals against the convictions do not save them from the dismissals.
In defence of the EC's move however Election Commissioner Muhammed Sohul Hussain said the commission is'following the laws".
Asked whether following two different laws results in discrimination, the election commissioner said the EC is not authorised to give explanations of laws, it rather "only follows them".