Disqualification for parliamentary election

Sub-clause (f) of article 66 (2) of the Constitution of the People’s Republic of Bangladesh
provides that a person shall be disqualified for election as or for being a Member of Parliament
who holds any office of profit in the service of the Republic other than an office which is
declared by law not to be disqualified its holder. Sub-clause (g) of the same article also states
that a person shall be disqualified for election as or for being a Member of Parliament who- is
disqualified for such election by or under any law. The sub-clause (g) is, in fact, referring to
the disqualification mentioned in article 12 (1) of the Representation of People’s Order, 1972
(RPO), the sub-clause (c) of which lays down that a person shall be disqualified for election or
for being a member if he is a person holding any office of profit in the service of the Republic
or of a statutory public authority. It seems that both the articles have been stated in the similar
terms except with the addition of the expression ‘statutory public authority’ in sub-clause (c)
of article 12 (1) of RPO. With the aforesaid provisions of law in hand and the parliamentary
election approaching fast the question that comes to the fore is- whether an Upazila Chairman
holds an office of profit in the service of the Republic or statutory public authority and thus
disqualified? To decide this issue, four questions need to be answered affirmatively. Firstly,
whether the office held by Upazila Chairman is an office at all; (ii) Secondly, whether that
office is in the service of the Republic or statutory public authority; (iii) Thirdly, whether that
POST TIME: 25 December, 2018 00:00 00 AM
Advocate Shah Monjurul Hoque and Barrister Muhammad Harunur Rashid
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office is an office of profit; (iv) and finally, whether that office is one other than an office,
which is declared by the law not to disqualify its holder.
The Parliament has created the post of Upazila Chairman by virtue of section 6 of Upazila
Parishad Ain, 1998. If one Chairman goes away another comes in. This post, in fact, exists
independently of its holder. Therefore, it may be said that the office held by Upazila Chairman
is an office.
Whether the office of Upazila Parishad is an office in the service of the Republic or in
statutory public authority, to ascertain that question it requires the explanation of the meaning
of the words “service of the Republic” and “statutory public authority”. The expression
“service of the Republic” has been defined in article 152 (1) of the Constitution as “any
service, post or office whether in a civil or military capacity, in respect of the government of
Bangladesh, and any other service declared by law to be service of the Republic.”The
definition suggests that when a person does service or holds post or office in civil or military
capacity in respect of Bangladesh Government, then that service, post or office may be called
service of the Republic.
In addition, article 59 (1) of the Constitution provides that local government in every
administrative unit of the Republic shall be entrusted to bodies composed of persons elected in
accordance with law. Article 152 (1) of the Constitution defines “Administrative Unit” as
district or other area designated by the law for the purposes of article 59.” These two articles
indicate that there shall be local government divided into administrative units and the person
who does service or holds post or office in any administrative unit of the local government, he
is in fact doing service or holding post or office in respect of the Bangladesh Government.
More importantly, section 4 of the Upazila Parishad Ain 1998, itself provides that the Upazila
is declared as an administrative unit of the Republic in accordance with article 59 read with
article 152 (1) of the Constitution. Moreover, section 69 of the Upazila Parishad Ain, 1998
lays down that the Chairman, Vice-Chairman and other Members of the Parishad shall be
deemed as a Public Servant in the same way as defined in section 21 of the Penal Code, 1860.
All the aforesaid articles of the Constitution coupled with the other provisions of law lead to
the conclusion that the post of Upazila Chairman has been created as part of the small unit of
the local government (part of Republic) and the person who holds that post may arguably be
called a holder of office in the service of the Republic.
Alternatively, can the office of Upazila Chairman be called an office in a statutory public
authority? Like above, the expression “statutory public authority” has been defined in article
152 (1) of the Constitution as “any authority, corporation or body the activities or the principal
activities of which are authorised by any Act, ordinance, order or instrument having the force
of law in Bangladesh.”The Upazila Parishad is a body that consists of Upazila Chairman, two
Vice Chairmen and other Members. The Upazila Parishad Ain, 1998 has not only created the
post of Chairman, Vice-chairman and other Members but it has also laid down the functions of
the said body in the Ain and Rules. Accordingly, this Parishad may be called a statutory public
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body in line with the definition above. This view is supported by section 5 (2) of the Ain itself,
which states that “Parishad is a statutory body”. Therefore, it may also be said that the
Chairman of the Upazila Parishad is holding an office in a statutory public authority.