Constitution has won

Perhaps one of the most important lacks of our fledging democracy was to ensure continuation of the constitutional framework to transfer power of the government especially in the 'transitional time' (poll time). HLA Hart (1961) calls it the change of sovereignty in the transitional time which, according to Hart, is one of the most important defects of Austins' model of law. We adopted ad hoc and defective solutions time to time to overcome the problem which has ripened the crisis actually. These deviations from the Constitution led us no where but towards more uncertainty; even sometimes to the extent of extra-constitutional regime. The 10th Parliamentary election, whether legitimate or not perhaps shows us a path at least to remain within the constitutional framework.
In the newly adopted Constitution of 1972 an excellent provision was inserted (57:3) to make sure the transfer of power to the successor at the end of the term of an elected government. These provisions were replaced by the fourth amendment of the Constitution but the constitutional procedure of transferring power to the successive President was not ceased. The President was allowed to continue until his successor enters upon the office.
We must admit that the deviation from the Constitution is not new in our political culture. We are sometimes startled to the fact that it even occurred during the Bangabondhus' regime. Increasing the duration of the Parliament and the term of office of the President without election may be considered as the first deviation from the Constitution (the Parliament was however dissolved on 6th November 1975 by a Proclamation).
The rest of the history of our democracy is well-known to us. After the brutal killing of the Father of the Nation with his family members, we went far away from our Constitution. In the guise of Military Proclamation, Bangladesh was made an Islamic republic constitutionally within a short span of time. The Preamble of the Constitution was almost rewritten; secular character of the state was destroyed, struggle for freedom was denied by the successive rulers.
After the demise of Khandaker Mostaque Ahmed from the scene, a promise was made for general election before the end of February 1977 to nominate the successor by Abusadat Mohammad Sayem. But again the election could not be held since Major Ziaur Rahman assumed himself in the office of President and Chief Martial Law Administrator. Later he had legitimated his power through a referendum and general election respectively and LG HM Ershad just followed his predecessor.
One important fact is that the succession of Mr. Sayem was recorded by a Proclamation issued on 8 November 1975. However, I have not found any such endorsement regarding Ziaur Rahman (I would appreciate if someone finds it out for me. I would also like to thank Prof. Borhan Uddin Khan who suggested me that since the Constitution was revived partially by this time and Mr. Rahman took oath under the [revived] constitution there was, perhaps, no need of official endorsement of his entering upon the office of President).  Mr. Rahman perhaps became President sometime between 29 November 1976 and 23 April 1977 (many confirm that is was 21 April 1977); just after five months of his appointment as Chief Martial Law Administrator on 29 November 1976.
These endeavours to grab and remain in power unconstitutionally continued until 1990 when the then President Ershad had no option but to resign from the office of the President against the backdrop of a mass movement.
Our desired democracy could have found a new path had we kept our Constitution above all. Again we opted for an ad hoc solution. Instead of Speaker of the Parliament (in absence of President and Vice-President Speaker of the Parliament will be the head of the state) we brought Justice Shahabuddin Ahmed from the Supreme Court to form a 'neutral and impartial government' in order to conduct the general election. We did not trust the Speaker and did not want him to continue though the Constitution desired to do so. Moreover, the Constitution was amended just to pave the way for Mr. Ahmed to return to his earlier position (perhaps it was unique in the constitutional history that a President went back and discharged his functions as Chief Justice of a country).
We were happy nevertheless. Weren't we? Our constitutional democracy came back. But the desire to grab the power of the successive government through election engineering led the opposition parties in Parliament to take the street for a non party caretaker government. Resultantly, another ad hoc solution came into being; of course unconstitutional and defective. Our political parties even the Bangladesh Awami League was happy with it, perhaps, due to their victory in the election. We got little leisure to think of this unconstitutional solution until 2007 when we came to realise what a defective solution it was.  Again, we paid for it a lot; two years of extra-constitutional regime (a military - civil society consortium government).
Finally, fifteenth amendment of the Constitution brought back the provisions for transfer of power that were in the original Constitution. It was certainly a challenge for the present government to go with these provisions amidst rejection by the main opposition parties. However, the challenge is over and finally it is proved that there would be no harm with this system. We must endorse that there are some loopholes in our electoral process but these are soluble by keeping the Election Commission independent and by introducing a space for collective decision making of the cabinet during the time of poll (by limiting the authority of the Prime Minister).  
Many are whining that the recently held 10th parliamentary election is not legitimate since many were deprived of their right to cast vote (more than 150 members elected unopposed). Perhaps, this is a unique problem that our democracy has been encountering since 1996 when BNP and JIB contested the election by forming a coalition (we have experienced coalition government of different political parties but coalition to contest election is perhaps new in our constitutional democracy). May we request them to think one thing? If there is a coalition between BAL and BNP in the next parliamentary election do we need any election at all? Shall we call the election illegitimate then?

THE WRITER IS ASSISTANT PROFESSOR, DEPARTMENT OF LAW, EASTERN UNIVERSITY.