Shakhawat Liton
The special committee of the parliament is trying to work out a way to give legality to the immediate past caretaker government’s rule of about two years, since it stayed in power beyond the three months timeframe allowed by the constitution.
The high-powered committee which already opened talks on the matter, also plans to hold a special meeting on the matter if necessary, members of the committee said.
If the committee reaches to a decision that the extra-constitutional tenure of the caretaker government led by Dr Fakhruddin Ahmed requires a legal coverage, then the parliament must amend the constitution, the committee members said adding, they are also looking for measures to put in place, so such shackling of the democratic process does not happen again.
“We are proceeding with the matter positively. Through discussions, we will find out the measures required,” Advocate Rahmat Ali, chairman of the special committee, told The Daily Star yesterday.
Committee member also former law minister Abdul Matin Khasru said, “We are discussing how to give a legal cover to the immediate past caretaker government that was supposed to stay in office only for three months.”
Formed on January 28 this year with jurisdiction to scrutinise the ordinances promulgated by the caretaker government, the special committee at its first meeting on January 31 opened the discussion, and might seek opinions of constitutional experts.
The committee members observed that the caretaker government’s regime must be legalised to block any chance of challenging its extra-constitutional tenure.
The Election Commission’s (EC) failure to hold the parliamentary election on time, made way for the caretaker government’s stay in office for about two years, although the government itself was obliged to extend all out cooperation to the EC in holding the poll within the timeframe specified by the constitution.
The High Court (HC) in a verdict on May 22 last year said the EC violated the constitution by not holding the general election within the constitutionally stipulated 90 days since the last parliament’s dissolution on October 27, 2006.
According to the constitution, the ninth parliamentary election was supposed to be held by January 25, 2007, which ended up being held on December 29, 2008.
On violation of the constitution by the EC, the HC said, “The failure of the Election Commission in holding the said election within the time fixed by the constitution may better be left for consideration of elected members of the new parliament.”
Legal experts said the immediate past caretaker government that assumed office on January 12, 2007, cannot avoid the liability for the violation of the constitution, as its constitutional responsibility was to extend all out cooperation to the EC, so it could hold a free and fair parliamentary election within the 90 days.
On the caretaker government’s tenure beyond the timeframe stipulated by the constitution, the HC observed, “After dissolution of the parliament, a caretaker administration cannot be thought, expected and allowed to continue beyond such time, as is provided by law, for failure of the election authority in holding the election. It could not be conceived in any democracy that the election authority would fail to hold an election within the time fixed by law.”
About the tenure of the caretaker government, the HC said, “The caretaker administration under clause (1) of article 58B of the constitution shall continue until a new prime minister enters the office after constitution of the parliament under article 11 of the constitution. Our Republic is a democracy and in such democracy unelected caretaker administration cannot be expected to be in office more than the time, what is not necessary for a new prime minister to enter the office.”
But in an additional comment Justice Md Ashfaqul Islam of the same HC bench said,
“By giving a rigid and mandatory interpretation of the provision of article 123 (3) and thereby holding that non-compliance of the same by not holding the election of the parliament within the time specified therein has violated the constitution, would not only be unwise and impractical, but in [sic] might lead to a ‘severe consequence’ affecting the whole nation jeopardising the sprit of article 7 of the constitution that ensures supremacy of the constitution declaring that all powers in the republic belong to the people.”
Meaning, article 123 (3) should not be interpreted dogmatically, and the sovereign people should be allowed a leeway to interpret the provision in accordance with their sovereign will.
In a parliamentary democracy, the parliament is the elected representative of the sovereign people.
Article 123 (3) of the constitution says a general election of members of parliament shall be held within ninety days after a parliament is dissolved, whether by reason of expiration of its term, or otherwise.
Explaining the implementation of constitutional provisions, the HC judgment said, “The constitutional provision is self-executing, it supplies sufficient rule by means of which the right it grants may be enjoyed and protected, or a duty which it imposes may be enforced without the aid of legislative enactment.”
But, Justice Ashfaqul Islam added in his comments, “Framers of the constitution of ours might have thought in their wisdom that a time limit should be incorporated in the constitution for holding a general election for the purpose of making the same positive and cohesive. But they consciously kept out of the scope what would be the fate or consequence if it cannot be perfected in compliance with the time limit.”
He went on, “To my interpretation, certainly this provision is open to liberal and flexible construction of the provision. Circumventing the same by giving a rigid and mandatory meaning would defeat the whole purport of the constitution sublime.”
“As I have mentioned …..that in a given situation the constitution has to be interpreted by taking all the relevant provisions of it together in a broader perspective and not in isolation…”, he said.
Members of the special committee and some legal experts said the caretaker government should have sought the opinion of the Supreme Court under article 106 of the constitution to overcome the legal debate raised over the failure to hold the ninth parliamentary poll within the constitutionally stipulated time.
On the Supreme Court’s advisory jurisdiction, article 106 of the constitution says, “If at any time it appears to the president that a question of law has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to the Appellate Division for consideration and the division may, after such hearing as it thinks fit, report its opinion thereon to the president.”
Courtesy: thedailystar.net
