Barrister Muhammad Nawshad Zamir writes for DOT :
All the three nominations filed on behalf of Bangladesh Nationalist Party (BNP) Chairperson Khaleda for contesting in the 11th parliamentary election from Feni-1, Bogura-6 and Bogura-7 constituencies were cancelled after the scrutiny by returning officer (RO) relying upon Article 12(1)(d) of the Representation of the People Order 1972 (R.P.O. 1972) due to her conviction in two corruption cases for which she is in jail now.
BNP has filed an appeal petition with the Election Commission (EC) against the rejection of its chief Khaleda’s nominations in three constituencies.
In the appeal application, BNP has relied upon the following grounds:
Khaleda has not committed any of the offence listed under article 12(1)(d) of the R.P.O. 1972 which are offences relating to elections and election processes, 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. 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 became inevitable;
Cancellation of the nomination paper of Khaleda implies that 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; has been ignored; The Universal Declaration on Human Rights (UDHR) stipulates the universal right to participate in government, directly or through freely chosen representatives.
The right to participate in public affairs guaranteed by the International Covenant on Civil and Political Rights (ICPPR), 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 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.
Relying on the above mentioned grounds, BNP hopes that the EC may allow Khaleda to participate in the upcoming 11th National Parliament Election as a candidate of the Bangladesh Nationalist Party (BNP) for all the three electoral constituencies.
The author is an Advocate of Bangladesh Supreme Court and has filed the appeal application with the EC on behalf of BNP chairperson Khaleda.