Legal dilemma: A Bangladeshi MP’s Kuwaiti conviction

After around seven months of trial for human trafficking, a Kuwait court on Thursday sentenced Bangladeshi lawmaker Kazi Mohammad Shahid Islam alias Kazi Papul to four years in jail.

The criminal court headed by Counselor Abdullah Al-Othman handed down the verdict in a human trafficking case. It also fined Papul 1.9 million dinars or around Tk53 crore.

Bangladesh Ambassador to Kuwait Major General Md Ashikuzzaman confirmed the news to the media.

Now, the question is, will any Bangladeshi MP convicted under Kuwaiti law lose his membership?

According to Article 66 (2) of the Constitution of Bangladesh, A person shall be disqualified for election as, or for being, a member of Parliament for several reasons, such as: if a suitable court declares him an unsound mind; if he does not get rid of the liability after being declared bankrupt; he acquires the citizenship of a foreign state or declares or acknowledges allegiance to a foreign state; he was convicted of a criminal offence of moral turpitude and sentenced to at least two years in prison; if he holds any lucrative position in the Republic; if he is absent from ninety consecutive sittings without the permission of Parliament and resigns from his party in the light of much-discussed Article 70 of the Constitution or votes against that party in Parliament.

If he is sentenced to more than two years in light of the prevailing penal code in Bangladesh, then Papul will lose his seat.

But the constitution of Bangladesh does not mention whether a person will retain the position of Member of Parliament if he is convicted abroad.

Even the High Court has no direction in this regard. There is a constitutional vacuum here.

However, the supreme court of India has multiple decisions in this regard. One of them was the judgment of the Calcutta High Court in the case of "Union of India and others vs Sushant Kumar Mukherjee" dated November 29, 1976. That verdict stated "If an employee is convicted in a foreign territory then he shall be terminated in India on the same ground if the same act is penal in India."  

The Supreme Court of India has ruled in favour of firing a government official after he was convicted abroad. The Indian Supreme Court took the view that if a person is punished abroad on moral grounds, it should be treated as a punishment in the country. 

Although the verdict does not mention anything specific about a Member of Parliament, in the spirit of the verdict, it is clear that there is no room for discrimination between government employees or members of parliament in the punishment of crimes.

Supreme Court lawyer Shishir Monir thinks there is no state boundary for moral turpitude crimes and its penalties. Even if convicted abroad, there is an opportunity to disqualify a Member of Parliament in the country under Article 66 (2) of the Constitution of Bangladesh.

He further said that if the Speaker does not take any initiative in this regard, any conscious citizen can take a judicial decision to address this issue by filing a writ petition in the High Court.

ACC lawyer Khurshid Alam Khan said the constitution did not specify whether a member of parliament would have a seat in the country if he was sentenced to at least two years abroad. In this case, he thinks that an explanation of the constitutional law is needed.

One more thing needs to be mentioned here, Abul Fayez Bhuiyan, a voter from Laxmipur-2 constituency, who was arrested in Kuwait on July 18, 2020, has sent a letter to the Election Commission seeking cancellation of his MP post. He sent the letter to the commission alleging that Papul had given false information about his educational qualifications in his affidavit during the 11th parliamentary elections.

In a letter to the EC, he said Mohammad Shahid Islam Papul mentioned he is post-graduate pass in his election affidavit. But the certificate provides a bachelor's degree. He has never had a secondary or higher secondary or equivalent degree. The bachelor's degree certificate submitted there is fake and forged. 

By giving false and untrue information in the election affidavit, he (Papul) has lost eligibility to be a candidate in the Eleventh Parliamentary Election. But the Returning Officer and the Deputy Commissioner on duty have allowed him to participate in the election without proper verification and selection, and he has also been elected, which is completely illegal and immoral.

Voter Abul Fayez Bhuiyan also filed a writ petition in the High Court. Later on August 16, the High Court issued a rule. Papul was expelled from the Laxmipur-2 constituency and asked why his constituency would not be declared vacant. The rule was passed by a High Court bench of Justice Obaidul Hasan and Justice AKM Zahirul Haque.

Speaker of the Jatiya Sangsad, Chief Election Commissioner, Secretary of the Election Commission, Secretary of the Parliament Secretariat, Deputy Commissioner of Laxmipur and Member of Parliament Kazi Shahid Islam Papul were asked to respond to the rule within four weeks. The bench, however, later broke down. As a result, the rule hearing has not started yet and the court decision has not been received yet.

However, there are instances where someone did not lose the post of Member of Parliament even though he was convicted. Haji Selim, a prominent MP from Old Dhaka, was sentenced to 13 years in prison on April 26 2008, in a case of illegal acquisition of wealth at Lalbagh police station. 

On October 25, 2009, Haji Selim appealed to the High Court against the verdict. Later, on January 2, 2011, the High Court quashed Haji Selim's sentence. The ACC later appealed against the High Court verdict. Following the hearing of the appeal, the Appellate Division quashed the judgment of the High Court on January 12, 2015, and again directed the High Court to hear Haji Selim's appeal. Despite the directive, the ACC did not take any initiative to hear the case. Haji Selim participated in the election in 2018 with a sentence on his head. Neither the Election Commission nor the ACC objected to this.

Now, the Speaker has to be informed about the punishment of Papul. Further action will be taken accordingly.

However, if there is any controversy over Papul's membership, the decision of the Election Commission will be final.

Article 6 (4) of the Constitution states that if there is a dispute over whether a Member of Parliament has lost his eligibility for office, or whether a Member of Parliament will have a vacancy under Article 70 of the Constitution, the question shall be referred to the Election Commission for hearing and disposal. The decision of the commission will be final.

And there is no opportunity for the Election Commission to go beyond the interpretation of constitutional law. So the solution to this debate must be found from within the constitution.

Ibrahim Khalilullah is an Investigative Broadcast Journalist at Jamuna Television; Dhaka, Bangladesh. He is also an International Fellow & Member at IRE (Investigative Reporters & Editors); Columbia, US

Disclaimer: The explanations given and views expressed in this article are the author's own and TBS does not necessarily endorse nor support those.