Govt has discretionary power to send Khaleda overseas for better treatment: Legal experts

Although the Law Ministry says it has nothing to do about BNP Chairperson Khaleda Zia’s treatment abroad due to legal barriers, some legal experts think the government can still let her go overseas using its discretionary power.

In comments to UNB this week they argued that when the government has extended the tenure of suspension of Khaleda’s sentence for eighth time taking fresh decisions on the application what it is saying "past and closed transaction", it can also give the BNP chief permission to receive treatment abroad in the same way by withdrawing or changing the conditions.

The experts also said the government can issue a fresh executive order allowing Khaleda to leave the country as per section 401 (1) of the Code of Criminal Procedures (CrPC).

Citing section 401 (1) of the (CrPC), they said the government can suspend or remit Khaleda’s sentence at any time without conditions or upon conditions.

On October 1, the law ministry denied former Prime Minister Khaleda Zia permission to go abroad for better treatment, suggesting that she must first return to jail and may apply to the court to get permission in this regard.

On September 5, Khaleda‍‍`s brother Shamim Iskandar submitted an application to the government, seeking her unconditional release and permission to take her abroad for her treatment at an "advanced medical centre" on an urgent basis to save her life.

In response Law Minister Anisul Huq said there is no chance to open the petition, which has already been disposed of as per Section 401 of the CrPC. “We gave the opinion that the petition disposed under Section 401 is a past and closed transaction. There is no other scope to open it," he said.

Sought comments, former law minister Barrister Shafique Ahmed and some pro-ruling party lawyers declined to talk about the matter.

Contacted, eminent jurist and constitution expert Dr Shahdeen Malik said the government can suspend the sentence of any prisoner upon conditions or without condition or can remit the whole or any part of the punishment.

As per section 401 (1) of the CrPC, he said the government released Khaleda Zia from jail through an executive order by suspending her sentence upon two conditions.

“The first condition was the tenure of her release for six months while the second condition was she has to receive treatment in Dhaka,” the expert said.

He said the government has extended the suspension of her jail sentence several times later changing the first condition, but Khaleda Zia did not have to go to jail again for changing this condition. “This means that the government did it with its discretionary power.”

In the same way, Dr Malik said the government can change the second condition by saying she can receive treatment at any ‘suitable’ hospital instead of saying she must receive treatment in Dhaka.

“If the government does it, there’ll be no legal barrier to sending Khaleda Zia abroad for treatment,” he said.

The jurist said he does not agree with the Law Minister‍‍`s interpretation of section 401 (1) of the CrPc. “It is not clear to me why Khaleda Zia should go to jail again for getting permission to go abroad for treatment.”

He said the government can allow her to go overseas as per section 401 (1) and it can add some more conditions like she cannot do politics abroad and she must return home after receiving treatment.

Replying to a question, Dr Malik also said he does not think Khaleda needs to go to court for going abroad for her treatment when the government can do it by using its executive power.

Another Supreme Court lawyer Shishir Monir echoed Dr Malik. He said Khaleda Zia needs not to return to jail to get permission or receive treatment overseas if only the government shows its good intentions.

He said the government applied its power with conditions while releasing the BNP chief as per section 401 (1) of the CrPC. “They (govt) can also now apply such power without any condition.”

The lawyer said it is clearly mentioned in section 401 (1) of the CrPC that the government can use its discretionary power at any time. “So, It’s not legally acceptable the law minister’s statement that there is no scope to reconsider Khaleda Zia’s fresh application under section 401 (1) of the CrPC.”

He said the government can remove the legal barriers to taking Khaleda abroad if it only issues a fresh executive order

Shishir said it is not a ‘past and closed transaction’ since the government has been increasing the tenure of Khaleda’s release every six months. “Since the government has been extending the suspension of BNP Chairperson Khaleda Zia‍‍`s jail sentence, it is not a ‘past and closed transaction’. So, the law minister’s interpretation is self-contradictory.”

He said the government suspended the BNP chief’s sentence and released her from jail by an executive order without the court‍‍`s consultation. “So, it’s the government, not the court, can make a decision on Khaleda Zia’s plea for treatment abroad.”

BNP law affairs secretary Barrister Kaiser Kamal said it is mentioned clearly in section 401 of the CrPC that the government can release a convicted person and allow to go abroad by its executive order.

He said there are precedents of releasing state prisoners for treatment abroad in national and international laws. But the government did not consider the application for allowing Khaleda Zia to go abroad out of political vengeance.

The government in March 2020 suspended Khaleda‍‍`s jail sentence and released her from jail on two conditions in response to an application by her family.

BNP Chairperson Khaleda Zia has been undergoing treatment at Evercare Hospital in Dhaka since August 9 as she has been suffering from various ailments, including liver cirrhosis, arthritis, diabetes, kidney, lung, heart, and eye problems.

The article is published in UNB, written by Abdur Rahman Jahangir