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8 January, 2019 00:00 00 AM
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Loan and bill default: Eligibility for parliamentary election

After election if any elected representative suffers any of the disqualifications under article 12 (1) of RPO, s/he should be disqualified immediately in line with the expectation of the people
Advocate Shah Monjurul Hoque and Barrister Muhammad Harunur Rashid
Loan and bill default: Eligibility 
for parliamentary election

PART-II

On the other hand, to describe the consequence of stay or injunction it is necessary to analyse the case laws. Legally, an interim of order of stay or injunction does not decide the case finally. During stay or injunction the status of a candidate is pending with the possibility of him being either defaulter or non-defaulter at the final substantive hearing. In the case of Abul Kashem vs Mahmudul Hasan alias Major General Mahmudul Hasan (retd.) an others 64 DLR (AD) (2012) 65, the Appellate Division of the Supreme Court upheld the decision of the High Court Division that the election of the appellant was void as he was disqualified for being elected as a Member of Parliament on the nomination day. The brief facts of this case are that at the initial stage for the election of 9th Parliament for Tangail -5 constituency held on 29th December 2008, the Returning Officer received two objections about the disqualification of the appellant Abul Kashem namely- default in paying bank loan and telephone bills. He ignored the said objections and accepted the nomination of the appellant Abul Kashem who, in turn, contested the election and was declared a returned candidate. It appears that the Returning Officer ignored the disqualification of loan default based on a stay granted earlier in Writ Petition No. 491 of 2007 and the disqualification of bill default was ignored on the grounds that it was a disputed and that it took place long before in 2001.
Consequently, the defeated candidate Mahmudul Hasan moved before the High Court Division with an Election Petition. The High Court Division in the said Election Petition declared the election of Abul Kashem void on the ground that he was both loan and bill defaulter at the relevant time and directed the Election Commission to declare the defeated candidate Mahmudul Hasan who secured the second highest vote as a returned candidate. Against the decision of the High Court Division, Abul Kashem filed an appeal before the Appellate Division. After hearing the appeal, the Appellate Division upheld the decision of the High Court Division on the ground that he was a bill defaulter. In view of the Appellate Division, the High Court Division could not call Abul Kashem a loan defaulter because an order of stay of CIB report granted earlier in a writ petition did not reach its finality.
Subsequently, in the case of Md. Golam Sorwar vs Election Commission of Bangladesh and others (unreported), the petitioner Golam Sorwar submitted nomination paper to contest in the Upazila Parishad Election scheduled to be held on 22nd January 2009 from Comilla Sadar South Upazila. After scrutiny, the Returning Officer rejected his nomination paper on the ground that he was a loan defaulter. Against the said decision, he filed an appeal before the Deputy Commissioner and the appeal being dismissed, he filed a Writ Petition No. 10150 of 2008 before the Hon’ble High Court Division which issued Rule and stay of the operation of the order of the Deputy Commissioner and allowed him to contest the election.
With the aforesaid order, he participated in the election and got elected as a Chairman. However, in the meantime the substantive hearing of the Writ Petition No. 10150 of 2008 took place and the Hon’ble High Court Division discharged the Rule and vacated the stay by a judgment and order dated 27th May 2012.
Against the said judgment and order he filed an appeal before the Appellate Division and got stay of the said judgment of the High Court Division enabling him to continue as a Chairman.
And with that stay he passed the whole tenure as a Chairman and at that point the aforesaid appeal was dismissed as being infructuous (fruitless) as because the schedule for the next Upazila Parishad Election was already declared.
The above two cases cast a grim picture of the stay. In the first case, the question of whether the candidate was a loan defaulter could not be ascertained at all during the tenure of the parliament but his membership, however, was declared void on the ground of bill default during the tenure of the parliament. Interestingly, in the meantime the candidate passed more than three years of his tenure as a Member of Parliament. What if the candidate did not have any disqualification of bill default? In that case he could have survived the whole tenure as a Member of Parliament with the stay granted in the writ petition. On the other hand in the second case, due to stay order by the court the concerned candidate was able to participate in the election and finish the whole of his tenure as Chairman. It further appears that the question of disqualification of loan and/or bill default may be finally decided either during the tenure of the parliament or after its expiry it may become infructuous.
At that stage, if the disqualification of loan and/or bill default is given the meaning of disqualification either for election or for being as a member of parliament, it may have the same consequence because in either case the people of his constituency would already be represented by a person of questionable character.
However, quite exceptionally before the 11th parliamentary election, the Appellate Division came up with a strict view as regards loan default in the cases of Ali Asghar vs Afzal H. Khan and others from Mymensingh-1 constituency and Afroza Rita who was a candidate from Manikgonj-1 constituency. In those cases, the candidates obtained an order of injunction from the High Court Division restraining the publication of their names as loan defaulter in the CIB report of Bangladesh Bank before the submission of their nomination papers or some earlier date. On the basis of that injunction order they got their candidature valid by the Returning Officer. On the other hand, the bank, being aggrieved by the order of injunction filed appeal to the Appellate Division and was able to get a stay of the said order of injunction. With that order of stay, both the bank and the aggrieved candidate filed Election Appeal before the Election Commission but the Election Commission was not inclined to interfere with the order of Returning Officer because on the day of submission of nomination paper an injunction order was in place restraining the publication of their names in the CIB Report. As a result, the candidates finally obtained the nomination by their party and allocation of election symbol by the Election Commission. But the bank and the aggrieved candidate filed separate writ petition challenging the order of the Election Commission on the ground of loan default. The bank obtained rule and stay of the acceptance of the nomination paper of the loan defaulting candidate and the aggrieved candidate got Rule and direction asking the Election Commission to publish the name of the aggrieved candidate as finally nominated candidate and allow him to participate in the election. Against the said orders of the High Court Division, both the bank and nominated candidates filed appeals before the Appellate Division. The Appellate Division dismissed the appeals and held that though the nominated candidates were under the protection of injunction order at the day of submission of nomination paper but they were not so at the time of hearing of election appeal. Because the order of injunction enabling the candidates to contest the election, was already stayed by the apex court. So in view of apex court, the injunction could not protect them. They were still loan defaulter and thus disqualified for election.
It appears from the foregoing discussion that the view taken, of late, by the Appellate Division indicates that the court is no longer taking any lenient view in respect of loan-defaulter. Stay and injunction cannot protect them from being a loan defaulter unless the loan is rescheduled or they actually pay the money back.
It may be concluded that a member of parliament suffering disqualification of loan and/or bill default afresh during the tenure of parliament may well have the possibility of continuing as a member of parliament by giving the words “for such election” in sub-clause (g) of article 66 (2) a literal meaning. On the other hand, with a stay or injunction a candidate having disqualification of loan and/or bill default could participate and win a parliamentary election in the past and then to continue as such member with further stay. But with the recent decision of the Appellate Division in the case of Ali Asghar vs Afzal H Khan and others and Afroza Rita (unreported), the scope to participate and win an election with injunction or stay may be limited unless in exceptional circumstances it appears appropriate to the court. It may, in turn, reduce the unexpected consequence of mechanical stay or injunction saving the people of a constituency from representation by a person of questionable character.
    
(Concluded)
The writers are lawyers

 

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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.

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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