Reviewing The Views Formation Of Poll-time Govt.
Solution lies in the Constitution
The proposal that the leader of the opposition in the Parliament has offered regarding the poll-time government may be called as 'old wine in a new bottle'. She has re-iterated it and has called for the Prime Minister in an indecent way to accept it during their much awaited talk. She was inhospitable while talking to the Prime Minister on phone.
Her's is an unconstitutional, undoubtedly, formula: the Constitution specifically prohibits rule of un-elected persons in every tire of administration. It has also been declared as one of the basic structures of the Constitution in many cases especially in Kudrat- E- Elahi Panir case in 1992. And all of us know that the basic structures of the Constitution are infallible.
According to her formula the selected persons from the last two caretaker governments may be elected as the women members are elected in the parliament. It is [technically] defective solution as the parliament is consists of 350 members of which 300 are directly elected by the people. The rest of the 50 seats in the legislature are reserved for women to be elected by the members in the parliament already elected. Therefore, unless all the selected persons, I am afraid, are women there would really a constitutional crisis.
The next question is who will be the Prime Minister in that poll-time government? Constitution indicates that the President will appoint the Prime Minister who appears to him commands the support of the majority of the members in the parliament. Many try to say that the satisfaction of the President is subjective and therefore he may appoint a 'selected cum elected' person as Prime Minister. I humbly express my disagreement with them. My reading of the Constitution as well as in our constitutional practice the President is required to appoint the chief of a political party as Prime Minister. That is the satisfaction of the President since s/he commands the support of the majority members of that party. Therefore, one must be a member of a political party and has been elected as chief of that party through council to be appeared to the President to have support of the majority of the members of that party. And of course this political party must have majority in the parliament. Another option could be that majority members in the parliament may support a person directly elected to be appointed as Prime Minister which requires many things, i.e., resignation of existed parliament member/s, holding election in that vacated seat and so on.
Therefore, the formula offered by the leader of the opposition in the Parliament is not easy to execute within the present constitutional framework. The other option according to her supporters is to go back to the old caretaker system which has been ruled out by Constitutional Fifteenth Amendment Act as per the direction of the Supreme Court of Bangladesh. Many would argue that the highest court has recommended to continue that system if parliament thinks so for the next two parliament elections at least. I would like to say that this suggestion of the Supreme Court cannot be said as judicious if we consider Hohfeld's (1879-1918) doctrine of jural opposite: that 'right' and 'no right' cannot go together; either you have right or you have no right. Similarly, a system cannot be 'unconstitutional' and 'constitutional' at the same time even the parliament things so. We may recall that the old caretaker government system was passed in the parliament and the Supreme Court invalidates it. How can it be constitutional again?
And of course the old system was faulty ab initio as we have already experienced it in 2007. The problem of that system, as it was then said by the present leader of the opposition, is that except minor and lunatic none is apolitical. And we have not forgotten yet, I am afraid, that our political parties failed to choose a non-political person then which led the President to assume the responsibility of the Chief Advisor. The rest of the history is known to all.
What/where is the solution then? I must say that it is the Constitution. Our Constitution has had provisions for transfer of power by one elected government to another. We may call it a transitional time. In the transitional time the legitimacy of law-making authority may be questioned. As a post-colonial country we have inherited Austinian (1790-1859) approach of law-making where continuation of sovereignty is a must. Instead of, there will be no law and the political society will be run by anarchists. I sometime surprise that, knowingly or unknowingly, the bellicose fifteenth amendment of the Constitution provides for a system where there will not be a lack of sovereign authority.
At best we may go with all party poll-time government as offered by the Prime Minister. It is possible within the present constitutional system. Many would say that this system will not guarantee the free and fair election and the opposition parties may loose their confidence. I do note their concern. At the same time I would like to request all to look at the official position instead of person. The authority of Prime Minister as it is in our present Constitution is despotic. Therefore, an amendment is necessary to limit the authority of the Prime Minister at least during the time of election. In a political society we must not expect a person apolitical but we can limit the power of an official to make him/her neutral.
It is our irony that none of us is talking about the Election Commission. We must not forget that during the poll it is the constitutional mandate that the administration (civil/military) and the government will assist the Commission to have an election free and fair. It is the Election Commission which will ensure the level playing field (a popular term used in our talk show). Even all the ministries should be run by the Election Commission during the time of election. The ministers will be acted as a de-facto head of the ministry. This is the ideal situation in a Constitutional democracy. And it could be a permanent solution for the present political crisis.
Let's we forget that there is no option to go back to the antebellum way of democracy from here.
The writer is the Chairperson of Department of Law, Eastern University.
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