Constitutional guidelines

However, according to the paragraph 2 of the Article 123 (4) the bi-election might be delayed for another 90 days, only, if it is not possible to conduct the election for reasons of an act of God. It says, "Provided that in a case where, in the opinion of the Chief Election Commissioner, it is not possible, for reasons of an act of God, to hold such election within the period specified in this clause, such election shall be held within ninety days following next after the last day of such period."

So under this clause, there is no way to delay the election except for reasons of an act of God, e.g. Natural Calamities. Any attempt to delay the election might be contradictory with the Article 7 (2) of the Constitution, which says, "This Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if any other law is inconsistent with this Constitution the other law shall, to the extent of the inconsistency, be void."

However, there are two indirect alternatives to delay the election at this moment. First, according to Article 106, the President of Bangladesh might ask for the advice of the Appellate Division in this matter. It 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." If the Appellate Division suggests in favour of delaying the election, only then election could be delayed. However, we have to remember that the Appellate division might also suggest the President not to delay the election according to the Constitution.

The second alternative is to issue a proclamation of emergency under the provision of Articles 141A and 58E. The President of Bangladesh might declare state of emergency if he is satisfied that a grave emergency exists in which the security or economic life of Bangladesh, or any part thereof, is threatened by war or external aggression or internal disturbance. However, we must consider the fact that, according to Articles 141B and 141C, during the state of emergency certain fundamental rights (guaranteed under Articles 36, 37, 38, 39, 40, and 42) remain ineffective. As the constitution of Bangladesh, according to the Article 123, is clear and provides straightforward guidelines, the Election Commission is constitutionally bound to hold election within 90 days after the parliament is dissolved.

It is worthwhile for the people of Bangladesh to strictly follow the provisions of the constitution. Otherwise, the fundamental principles of the Republic of Bangladesh and fundamental rights guaranteed under the constitution might be challenged in future on the ground that respecting the constitutional provisions is not obligatory.