HC rejects Ershad's appeal, hands him 2yrs behind bars |
Defence claims of no hearing on appeal, sees political link
To the utter surprise of many, the High Court (HC) handed two years' imprisonment to former dictator HM Ershad yesterday, rejecting his appeal against the trial court's verdict in a corruption case of purchasing Japanese boats.
The verdict has now given rise to the question if Ershad, who is also the president of the Jatiya Party (JP), will be able to take part in the upcoming parliamentary election.
After over 11 years of appealing against the trial court judgment that awarded Ershad a three-year term in the jail, the attorney general's office moved in the court for holding hearing of the appeal. Tuesday was fixed for the hearing at the court of Justice Faisal Mahmud Faizee.
Ershad's lawyers said they did not get the chance to hold hearing of their client's appeal against the lower court verdict. "The way the verdict came is unprecedented," Advocate Shaikh Sirajul Islam told The Daily Star.
They said they are aggrieved by the verdict like their client Ershad.
It is a "politically motivated" case and Ershad has been deprived of justice, they said, adding that they will challenge the HC judgment at the Appellate Division.
When the court sat on Tuesday, Ershad's counsel made a verbal submission for deferring the date of hearing, seeking time for collecting some necessary documents. The court fixed the next day for the hearing.
When it resumed on Wednesday, Ershad's lawyers filed a written prayer for time extension, saying the paper-book lacked most essential papers and documents and exhibits necessary for the disposal of the case. They also mentioned that Ershad's senior counsel Barrister Azmalul Hossain will leave for Hajj. They appealed for deferring the case by two weeks after the Supreme Court vacation ends on January 9.
The court fixed yesterday--the last working day before the vacation--for hearing the time prayer.
The court rejected the time petition at 11:25am yesterday. When it was preparing for passing its order at 2:45pm, Ershad's lawyer sought half an hour's time for getting an Appellate Division order regarding the rejection, which the court granted.
As Ershad's lawyers did not return to the court by 3:45pm, the court delivered its verdict cutting the trial court penalty by one year.
"We prayed for the papers and documents necessary for the disposal of the case but did not get them. We also did not get time for hearing the appeal against the lower court judgment," said Shaikh Sirajul.
Even if the Appellate Division upholds the HC verdict, Ershad will not have to serve the two-year term in the jail because he had already served six years in prison--three years of the time in the Janata Tower corruption case.
"As the court awarded him three years' imprisonment in the [Janata Tower] case, the time was deducted from six years. If the Appellate Division upholds the High Court verdict, two years will be further deducted from the rest three years," Sirajul told The Daily Star.
Asked if the verdict will prevent Ershad from contesting the upcoming election, Sirajul said, "I do not see any bar since his imprisonment was completed in 1997."
Section 66(2) (d) of the constitution reads, "A person shall be disqualified for election as, or for being, a member of Parliament who has been on conviction for a criminal offence involving moral turpitude, sentenced to imprisonment for a term not less than two years, unless a period of five years has elapsed since his release."
Deputy Attorney General Helaluddin Molla, who moved for the state in the case, however, said Ershad will not qualify for contesting the next election.
Barrister Rokanuddin Mahmud, vice-chairman of Bangladesh Bar Council, said Ershad was disqualified to compete in the election in 2001 for a conviction. "He cannot be disqualified again for the same conviction," he said.
Meanwhile, questions arose about the sudden move of the state law officers to begin hearing of the case ahead of the next election.
Ershad's lawyers and JP leaders observed that the move was initiated because of Ershad's decision not to join the BNP-led four-party alliance.
Interestingly, the military dictator had been cleared of charges in four cases after he expressed his willingness to join the four-party alliance following a meeting with BNP Senior Joint Secretary General Tarique Rahman and the then state minister for home affairs Lutfozzaman Babar in August.
But when he backtracked, Ershad was threatened over the telephone that he would be sent to jail if he does not join the alliance, JP sources said.
The law officers, who moved for beginning the hearing this time, were appointed by the immediate past BNP-led four-party coalition government.
The judge of the single-member HC bench that dealt with the case, Justice Faisal Mahmud Faizee, was also appointed by the same coalition government. An allegation of tampering the LLB results against Justice Faizee resulted in huge agitation on the Supreme Court premises last year.
The BNP-led coalition government appointed Faizee as a permanent judge to the HC although the chief justice had not recommended for his confirmation after expiry of two years as an additional HC judge.
HM Ershad, who usurped power through a bloodless coup in March 1982 and was deposed in December 1990, was found guilty of misappropriating Tk 33 crore in a shady deal for purchasing 520 Japanese boats and 10 water-purifying machines for relief operation in 1989.
The Divisional Special Sessions Judge's Court sentenced Ershad to three years' imprisonment on July 6, 1995. Ershad appealed against the verdict the same year.