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10 February, 2018 00:00 00 AM
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Conviction and disqualification for parliamentary election

There are various case laws suggesting that the appellate court should be slow in finding a verdict of guilty as it did not have the same opportunity as the trial court to watch a witness …
Advocate Shah Monjurul Hoque And Barrister Muhammad Harunur Rashid
Conviction and disqualification for 
parliamentary election

PART-II

Following the order of the Appellate Division, the Election Commission published Gazette Notification on September 22, 2010 vacating the seat of Mohiuddin Khan Alamgir but thereafter, the High Court Division in another Writ Petition No. 7694 of 2010 stayed the said Gazette Notification on September 26, 2010 allowing him to continue as a Member of Parliament. In the meantime, both the High Court Division and the Appellate Division acquitted him of the conviction and sentence passed by the Special Judge in the case filed by the Anti-Corruption Commission. It needs to be noted here that the Appellate Division acquitted Mohiuddin Khan Alamgir of the conviction and sentence on July 4, 2010, which was nearly two and half months earlier than the date of stay that allowed him to continue as a member of parliament. It appears from this case that Mohiuddin Khan Alamgir was allowed to contest the election on the basis of stay by the Chamber Judge and he was also allowed to continue as a member of parliament on the basis of stay of said Gazette Notification by the High Court Division. Interestingly, his conviction was not taken into consideration to disqualify him to contest the election nor acquittal to allow him to continue as Member of Parliament.

Due to these two leading cases with one having split judgment and another neither taking conviction nor acquittal into consideration for the purpose of disqualification for election or continuance as a member, we have been left in an uncertain state as regards the meaning of the expression “conviction” from our Apex Court. Now a convicted person as well as a convicted Member of Parliament may use the meaning of the expression “conviction” as stated in the case of Hussain Mohammad Ershad according to the need suited to him. Or they may rely on mechanical stay to get elected and then they may rely on further stay to continue as a member ignoring the constitutional provisions of article 66(2) (d). It may be possible to argue that both interpretations in case of Hussain Mohmmad Ershad are acceptable. But which interpretation is a better statement of law is not clear. This may perhaps be ascertained by looking into what mischief would be created by the potential use of each interpretation, and then balancing those in favour of the interpretation that may well have caused the least harm.

If the expression “conviction’ in article 66(2)(d) is given the construction of conviction starting to have effect on disqualification from the time when it reaches finality after exhaustion of appeal and review process, a number of anomalies may arise-

Firstly, the convicted person by the trial court may be elected and may well have served his tenure as a member of parliament and exhausted it with his conviction before the finality of conviction is reached either by appeal or review process under articles 103 and 105 of the Constitution. And at that point if conviction is confirmed then, arguably, the people of his constituency in particular and the nation as a whole have already been represented by a person of questionable character. Nothing can be changed at this stage.

The case of Hussain Mohammad  Ershad vs. Abdul Muktadir Chowdhury and others is a glaring example of that. On June 7, 1993 Hussain Mohammad Ershad was convicted of Janata Tower Case while he was a Member of Parliament, and sentenced to 7 years imprisonment. With that conviction he not only remained as a member till the end of sixth parliament but also participated in the 7th parliamentary election of 1996 and continued to represent throughout the tenure till his conviction was finally confirmed on November 23, 2000 when the tenure of 7th Parliament approximately came to an end. It seems to have clearly frustrated the very purpose of article 66 (2) (d).

Secondly, what could potentially be done if a person who has been convicted and sentenced does not want a stay of that conviction or is not willing to appeal against his conviction and sentence accepting the verdict of the trial court is, not clear. In that case, if conviction is considered as finality of conviction by the last appellate court, arguably he may not be disqualified and as such the principle that conviction would operate to have effect upon disqualification from the finality of conviction by the last appellate court, does not remain principle of universal application. To cover up the situation, either the inherent power of the court under section 561A has to be invoked or the law has to be changed in order to incorporate the provision that in case of a convict who does not want a stay or prefer an appeal against the conviction, it would be operative from the date of the conviction by the trial court. This is in fact going back to the square. Therefore, it is better off stating that conviction starts from the date of conviction by the trial court and then the aforesaid anomaly may not arise.

Thirdly, the appellate court may not convict any person rather it may only confirm or overturn the conviction given by the trial court. However, in one situation it may convict an accused when there has been an acquittal by the trial court. Even in that case, they do not have the same opportunity as the trial court to see the demeanour of the witness, as live evidence is not provided before the appellate court unless it is necessary in the interest of justice. There are various case laws suggesting that the appellate court should be slow in finding a verdict of guilty as it did not have the same opportunity as the trial court to watch a witness and how he reacted to a particular question. Therefore, if a conviction is meant to be final only when given by the appellate court, it may create anomaly.

Fourthly, his Lordship Md. Joynul Abedin in the case of Hussain Mohammad Ershad (above) reasoned that if a conviction is interpreted to mean conviction by the trial court in case of a sitting member, it may create an anomaly in that there may be two members in one seat if his conviction is set aside by the last appellate court. It is submitted that no anomaly would arise. Once stigma has been attached to a member of parliament he must go and must never come back even after acquittal as stigma can never be effaced. Therefore, there is no possibility of having two members following by-election and after acquittal.

On the contrary, if a conviction is given effect upon disqualification from the date of conviction by the trial court, a question may arise as to what will be the consequence of bail, stay of conviction, appeal and more importantly the acquittal of the convict by the last appellate court. Grant of bail is simply a transfer of custody of the convict from prison authority to a surety on execution of bond. It does not suspend the sentence. Sentence is the natural consequence of conviction and hence suspension of sentence or appeal against such sentence does not itself automatically suspend or stay the conviction unless conviction is stayed or suspended under section 426 of the Code of Criminal Procedure. Section 426 of the Cr. P. C. states that pending any appeal by a convicted person, the appellate court may, for the reasons to be recorded in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.

The plain reading of this section seems to have made it very clear that there is power only for suspension of the sentence and there is no power for suspending the conviction. Arguably, if conviction can be suspended or stayed under section 426 read with section 561A, it may not remove the conviction entirely because an order of stay does not render the conviction non-existent, but only non-operative.  What if the appeal court acquits the convicted person?  There is diverse view in relation to this. In Indian jurisdiction, when a convict person is acquitted, it would have the effect of retrospectively wiping out the conviction and sentence awarded by the lower court. It is our opinion that this is not the correct view. This view as held by the Indian Judiciary is contrary to the specific provisions of R. P. Act and constitutional mandate and requires reconsideration.

In this context, it is pertinent to mention laws from English jurisdiction. Section 98 of the Criminal Justice Act 2003 defines bad character as “evidence of misconduct”. Evidence of misconduct is further defined under section (112(1)) of the same Act as the commission of an offence or other reprehensible behaviour. And the commission of an offence includes both previous conviction and acquittal. Thus by analogy it may be said that acquittal is evidence of bad character. A question may crop up as to how an acquittal may be bad character. In the case of Z [2000] 2 AC 483, Z was charged with the rape of C, and his defence was consent. On four separate occasions Z had been tried for the rape of other women and on three occasions he was acquitted. The prosecution contended that the evidence from all four previous complaints was admissible to rebut the defence put forward in respect of C.

This contention was opposed by the defence. The House of Lords held that evidence of previous acquittal might be used to prove the guilt of the accused in relation to the offence for which he is on trial. The aforesaid principle by the House of Lords essentially establishes that an acquittal does not efface the stigma that has once been attached to the accused by way of conviction. In view of the writers, this sounds better law than the law stating that acquittal would have the effect of eclipsing retrospectively the conviction and sentence of the trial court.  Thus stigma may remain after acquittal. So, a stay of conviction or appeal against such conviction or even acquittal of the convict by the last appellate court, may seem to have clearly got a convict nowhere but to the same place where he was after the conviction by the trial court.

On balance, it appears from the discussion above that if conviction is held to be final after confirmation by the last appellate court, it may create more problem than it solve. On contrary, if conviction is given the construction of conviction by the trial court it may represent a better statement of law. Moreover, if the framers of the Constitution wanted to mean by the conviction to have the meaning of conviction to be final by the last appellate court, they would have expressly said so in the constitution like the framers of the Indian Constitution. That not being the case, no extended construction should be allowed and hence, a conviction may disqualify a Member of Parliament and a non-member to contest the election from the date of conviction by the trial court and a stay/suspension or acquittal if any, may not have an effect upon that disqualification.

(Concluded)

The writers are lawyers

 

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Editor : M. Shamsur Rahman
Published by the Editor on behalf of Independent Publications Limited at Media Printers, 446/H, Tejgaon I/A, Dhaka-1215.
Editorial, News & Commercial Offices : Beximco Media Complex, 149-150 Tejgaon I/A, Dhaka-1208, Bangladesh. GPO Box No. 934, Dhaka-1000.

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