Disqualification by accusation? Some thoughts about the new ICT Act clause
The latest amendment to the International Crimes (Tribunals) Act, 1973, is widely perceived to disqualify individuals from running in any election upon the submission of a formal charge. The amendment, passed on October 6, disqualifies individuals from holding public office or from being appointed to any service of the republic. Since the provision excludes the requirement of a conviction, it naturally prompted discussion about whether this contradicts the fundamental principle of "innocent until proven guilty." After all, all it would take for someone to lose their job or electoral candidacy is a formal charge submitted to the tribunal by the chief prosecutor. The court does not even have to take cognisance of the charges, let alone indict, prosecute, or convict them.
But this article argues that the situation may not be so straightforward. It can be recalled that the first time a question about the International Crimes (Tribunals) (Third Amendment) Ordinance, 2025 arose, it concerned the status of 15 serving army officers under trial at the tribunal. When asked about the officers' status on October 26, one prosecutor said, "It is now up to Army Headquarters to decide when to apply the law. Until it is applied, they can be considered serving officers."
For all latest news, follow The Daily Star's Google News channel. The following day, the chief prosecutor's office issued a clarification. It stated that the prosecutor's remark had been "misquoted and distorted," creating the wrong impression that the law's application depended on the army authorities. It clarified that under Section 20C of the amended ICT Act, 1973, once a formal charge is submitted, the accused is "automatically disqualified from holding any public office or service of the republic, unless discharged or acquitted by the tribunal."
The statement also noted that Section 26 of the act gives it precedence over any other law, as reinforced by Article 47(3) of the constitution.
Turning to the amendment in question: the change comes in the form of an added sub-section (20C) under the heading "Disqualification of the accused upon formal charge." It states that upon submission of a formal charge, the person concerned will be disqualified: "(a) from being elected, or being a member of Parliament; or (b) from being elected or appointed, or being a member, commissioner, chairman, mayor or administrator, as the case may be, of any local government bodies; or (c) from being appointed to any service of the Republic; or (d) from holding any other public office." The disqualification will not apply to anyone discharged or acquitted.
Before going further, it is worth clarifying what "formal charge" means. It is essentially a petition from the chief prosecutor's office listing criminal accusations. The prosecutor submits this—typically to the registrar's office—after receiving the investigation report. The court then hears the petition, and may take cognisance of the accusations or, if it finds no merit, dismiss some of the charges. The prosecution then has to prove those charges, which the court finds credible. Thus, the submission of formal charges does not in any way entail judicial oversight or involvement; it is merely the initiation of proceedings that may eventually lead to trial.
That said, none of the four points under the new sub-section disqualifies an existing public servant from continuing in service. The "c" of Sub-section 20C, which is relevant for the army officers, bars individuals only from "being appointed."
The army subsequently asked the government for directives on the matter. When asked about this at the army headquarters on November 5, Brigadier General Md Mustafizur Rahman said that the government had yet to clarify the issue. As such, the confusion still remains.
Thus far, most public discussion has revolved around the wording of the amendment rather than the remit or scope of the law itself. The ICT Act, 1973 states at the very outset that it is "An Act to provide for the detention, prosecution, and punishment of persons for genocide, crimes against humanity, war crimes and other crimes under international law." It does not mention "disqualification." Some might argue that disqualification falls within the remit of other laws—perhaps the Representation of the People Order, or even the constitution, which clearly sets out the eligibility of members of parliament in Article 66. Hence, it could be argued that the latest amendment oversteps the boundaries of what the international crimes law is meant to regulate.
The constitution does state that anyone "convicted" by the International Crimes Tribunal will be disqualified from running for parliament. But it says nothing about disqualification on the basis of formal charges.
Now, let us turn to Article 47(3) of the constitution cited by the chief prosecutor's statement. It reads: "Notwithstanding anything contained in this Constitution, no law nor any provision thereof providing for detention, prosecution or punishment of any person … for genocide, crimes against humanity or war crimes and other crimes under international law shall be deemed void or unlawful … on the ground that such law or provision … is inconsistent with, or repugnant to, any of the provisions of this Constitution."
In plain language, anyone's "detention, prosecution or punishment" for crimes against humanity will stand even if it contradicts the constitution. Notably, there is nothing about "disqualification." Nor can disqualification be reasonably interpreted as "punishment" because punishment only comes after conviction at the end of a trial. It doesn't fall under detention or prosecution either.
It should therefore be clear that since it was originally the intent of the law to provide for "detention, prosecution and punishment" for crimes against humanity (among other offences), the constitution also recognises that. But the constitution does not recognise "disqualification" arising out of the ICT Act.
Whether the latest amendment is legally tenable or whether it goes beyond its remit as set out by the law itself is, of course, a matter for legal debate, a debate perhaps best settled in court. But it certainly warrants closer scrutiny. What is clear is that the disqualification for MP candidates based on formal charges, as provided by the amendment, is in contravention of the constitution. Since the constitution's exception clause under Article 47(3) does not cover such disqualification, the constitution should prevail. Contrary to what the amendment states, formal charges would not automatically disqualify individuals from running for parliament, nor army officers from continuing to hold office.
As things stand, there is nothing in the constitution that permits the removal of electoral eligibility—or eligibility for any office—on the mere filing of charges. If such a departure from established constitutional safeguards is to be made, it should be done through a clear constitutional amendment, not through legislative overreach. Until then, the ICT Act's disqualification clause remains suspect at best, and untenable at worst.
Tanim Ahmed is digital editor at The Daily Star.
Views expressed in this article are the author's own.
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