Law InterviewConstitutional debate on Interim Govt.
Win Win formula for upcoming poll
The Formula: One member of the parliament shall resign and that vacancy would be filled by a person acceptable to the two leaders. If the said person is a woman, she can easily and quickly be elected in a seat reserved for women. Otherwise, a bye-election should be held and there is every possibility that within few weeks he can be elected uncontested. The person so elected would be the head of the interim government. This accommodates the Opposition stand.
On the other hand, the cabinet of the interim government can be formed according to the proposal of the Prime Minister, taking 5 MPs from opposition and 5 MPs from ruling party. This accommodates the incumbent government's stand.
Dr. Borhan Uddin Khan is a Professor, Department of Law and former Dean, Faculty of Law, University of Dhaka. Md. Golam Sarwar, Law Desk talks with him on various constitutional issues in relation to the composition of interim government aheading the 10th Parliamentary Election.
Law Desk (LD): What is the constitutional stand regarding the dissolution of parliament during the period of election?
Borhan Uddin Khan (BUK): The upcoming 10th parliamentary election, as it stands today, would be held under article 123(3)(a) of the Constitution of Bangladesh. Accordingly, the election period is from 27 October 2013 to 24 January 2014. Had Parliament been dissolved earlier, i.e., before 27 October, the election could be held under article 123(3)(b). In that case, 90 days from the date of dissolution, would be the period of holding election. Since Parliament has not been so dissolved, generally, I repeat generally, this option is no more available, as the course of holding election has fallen within the domain of the Election Commission. But imagine a situation where some MPs may be 100, 200 or any number have resigned before the declaration of the schedule by the Election Commission. In such a situation under article 123(4) the Commission will have to hold bye-election to fill the vacancy within 90 days of the occurrence of the vacancy. Thus, the Commission would be required to hold bye- election for the 9th Parliament and general election of the 10th Parliament during or around the same time frame. Needles to mention this would create a situation which we hardly can imagine. Thus, the best option open to the Prime Minister would be to dissolve the Parliament in order to resolve the crisis and pave the way for holding 10th Parliamentary election.
This leads us to conclude that it is not true that once the election time starts as per article 123(3)(a) Parliament cannot be dissolved. Thus, the possibility to dissolve Parliament is still open. Needless to mention that if the MPs retain their positions and power, there would be no level playing field for candidates contesting the election. The problem will be more acute if some of the existing MPs from the ruling party fail to get nomination as it would surely lead towards internal confrontations within the ruling party. So it remains a big challenge even for ruling party to hold the election without dissolving Parliament.
LD: Do you find any linkage between the 15th amendment and the present political tension or debate?
BUK: The 15th amendment, by repealing the 13th amendment, has abolished the non-party caretaker government. To justify this amendment, the ruling party continuously refers to the judgment of the Appellate Division declaring the 13th Amendment unconstitutional. But the said judgment, in its operative part, has ordered that the next two parliamentary elections may be held under the 13th Amendment on the grounds of necessity and safety of the people and state. True, the detailed judgment following the said short order also spoke of an interim government with elected representatives. In one sense, this is, as observed by his Lordship Justice Md. Abdul Wahhab Miah, inconsistent with the short order. Without taking much time in analysing this discrepancy, one can easily understand that what was said in the short order, i.e., holding the next two elections under the 13th Amendment, is certainly more authoritative than what has subsequently been said in the detailed judgment. The current government, for reasons best known to them, has misread the judgment as a whole and relied on a less authoritative part that suits them and made a more authoritative part, i.e., the enabling part of the short order, nugatory. Here lies the crux of the present political tensions.
LD: Proponents of the 15th amendment of the constitution argue in favour of elected representatives instead of unelected representatives for interim government, how would you see this justification?
BUK: That an interim government is incompatible with democracy unless it is run by elected representatives stems from an oversimplification of facts. In all other countries with parliamentary system of government interim governments operate in the absence of parliament. Such a government, on dissolution of parliament, does not represent the people. In other words, interim governments in these countries are always constituted with unelected people. Therefore, to allow a non-elected government for a limited period of time cannot ipso facto be undemocratic. Rather it is more in consistent with traditions of parliamentary governments. Seen from another perspective, 'democracy' and 'free, fair and credible elections' are inseparable twins. In the present day Bangladesh contexts, it is rather very easy for a party in power to exert unfair influence during elections. If this possibility is not seriously guarded against only on the ground that so-called elected representatives should run the election time government, the essence of elective representatives governing the country for five years would be frustrated. So the unelected representatives can be employed for temporary period in order to secure free and fair election which would not hamper democracy.
LD: What can be the possible way out within the present constitutional framework?
BUK: Who would head the election time government is at the centre of the ongoing debates. Both the leaders, in their proposals, have actually bypassed this vital issue and put more emphasis on the other members, i.e., ministers or advisors, of the said government.
The major political parties should come up with a formula that will ensure the participation of all parties in the upcoming poll. It can be done by amending or not amending the constitution. If it is amended then there is no problem. But I propose a formula that can work even without amending the constitution and at the same time be acceptable to the parties.
One member of the parliament shall resign and that vacancy would be filled by a person acceptable to the two leaders. If the said person is a woman, she can easily and quickly be elected in a seat reserved for women. Otherwise, a bye-election should be held and there is every possibility that within few weeks he can be elected uncontested. The person so elected would be the head of the interim government. This accommodates the Opposition stand.
On the other hand, the cabinet of the interim government can be formed according to the proposal of the Prime Minister, taking 5 MPs from BNP and 5 MPs from AL. This accommodates the incumbent government's stand.
In this formula we can reflect the voice of both parties in a compromised way and it can ensure a win-win situation for them. Otherwise, it is highly impossible to find a solution within the present constitutional framework and ensure a participatory election since the parties are not in a position to leave their respective stands.
Now this is up to the parties what they want: amendment of the constitution, confrontation or compromise by the win-win formula?
LD: Thank you indeed.
BUK: Thanks.
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