HUSSAIN MOHAMMAD ERSHAD VS ZAHEDUL ISLAM KHAN 54 DLR AD 2002

 

 Analysis of the Fact:

Hussain Mohammad Ershad was elected as a Member of Parliament in the General Election held on 12/06/1996. After the vacation of his office of President the Bureau of Anti Corruption started several cases against him involving corruption under the Prevention of Corruption Act, 1947. Among them Janata Tower Case was mentionable and under that case he was convicted and sentenced to imprisonment. In view of the criminal misconduct and moral turpitude the present petitioner has been disqualified being a Member of Parliament in the light of the provision of Articles 66(2) (d) and 67(1) (d) of the Constitution.

Rule Nisi of the High Court Division;

The High Court Division issued rule nisi directing the present petitioner to show cause under what authority he is acting as a member of the Parliament and why he shall not be restrained from and to act as a member of Parliament.

Issue:                                                    

Whether the alleged petitioner is disqualified to be a member of the Parliament or not ?

Argument from the petitioner:

It was argued that

 The criminal cases filed against him were all politically motivated and had been filed ater along lapse of time of eight or nine years. In none of the cases he was convicted of moral turpitude and as such it did not attract the disqualifications under the Constitution.

 Whether the conviction resulted in moral turpitude or not to be decided by the Election Commission and not by the Speaker and the matter ought to have been referred to the Election Commission.

Argument from the Respondent:

It was argued that

 The writ petitioner was not an aggrieved person and his fundamental right had not been infringed in any way.

 The acts of the petitioner were moral turpitude. In the Constitutional Law of Bangladesh written by Mahmudul Islam moral turpitude has been used in a narrow sense otherwise the use of the word would be meaningless. Test of determining the moral turpitude would be whether the act could shock the moral conscious of the society in general and whether the motive which led to the act was a base one and whether on account of the act the perpetrator could be considered to be a man of depraved character.

Decision:

The petitioner was disqualified to be a Member of Parliament under the Article 66 and his seat as member stood vacant under Article 67 of our Constitution. There was no merit in the writ petition.

Reasoning behind the decision:

The court provided the above decision on the following grounds:

 The petitioner was rightly convicted of moral turpitude and sentenced to imprisonment for a minimum period of two years.

 The petitioner was the President of the country and had the total executive power. The post is very signified and honorable. When a person of such a position has been convicted and sentenced for an offence under the provision of Prevention of Corruption Act, 1947, it shocks the moral conscience of the society in general.

Principle:

Embezzlement of state money by a person who was the president of the country and using the same for his personal benefit or having properties disproportionate to his known source of income will definitely come within the ambit of moral turpitude.

Importance of this case:

In this case the grounds of disqualification of a member of parliament before and after the election are elaborately discussed under Article 66 and 67 of our Constitution.