The 90-day constitutional confine

Sharply opposing her arch-rival Sheikh Hasina's demand to defer election fixed on January 22, BNP chairperson Khaleda Zia demanded election within the stipulated 90-day time-frame and continuity of constitutional democracy.

The AL asked the Election Commission (EC) on December 13 to defer the election date by 46 days wasted by "one person" and advised the EC to go to the Supreme Court for seeking the additional time beyond the 90-day constitutional confines. But the BNP suggested the EC for moving the date forward by a day or two because of Sarawati Puja. EC secretary, however, said there is little scope to hold election beyond the constitution stipulated time of 90 days for the caretaker government (CG) even if all political parties reach a consensus in this regard.

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Shujan, a citizens' group for good governance, organized a round-table in the capital on December 13, seeking the way of coming from the exiting political impasse. The eminent citizens of the country who attended the roundtable titled "Having a belated election is better than a farcical election" observed that the CG has lost its credibility and an election participated by the major political parties is better than a farcical election in the present confusing political circumstances.

On the other hand Jatiya Nagoik Forum, a pro-BNP civil society organization, organized a dialogue titled "Present Bangladesh: Responsibility to Flag and Map" at the Press Club on December 18. The speakers at the dialogue said the next general election must be held within 90 days in order to safe-guard the national flag and map. Otherwise the country would be plunged into deep constitutional crisis.

Articles 123(3) of the Constitution stipulates: "A general election of members of Parliament shall be held within ninety days after Parliament is dissolved, whether by reason of the expiration of its term or otherwise than by reason of such expiration." But this article is not the only constitutional provision for holding an election, and Article 119(1) (b) and Article 58D (2) also have relevance.

Article 119(1) (b) empowers the EC for holding parliamentary election preparing electoral rolls for the purpose of elections. The Article 58D(2) states: "The Non-Party Caretaker Government shall give the EC all possible aid and assistance that may be required for holding the general election of members of Parliament peacefully, fairly and impartially."

Article 123(4), which deals with the time frame for by-elections, reads: "An election to fill the seat of a Member of Parliament which falls vacant otherwise than by reason of the dissolution of Parliament shall be held within ninety days of the occurrence of the vacancy. 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."

We have observed at least three instances in the 8th Parliament where by-elections were not held within 90 days, not for reasons of an Act of God. These by-elections were held in Dhaka-10 constituency which fell vacant due resignation by Major A Mannan (Rtd) from BNP, Comilla-8 constituency vacated due to demise of Col. Akbar Hossain (Rtd), and Dinajpur-3 constituency vacated due to demise of Mrs Khurshid Jahan Haque.

Evidence shows that the government has violated or ignored constitutional provisions for separating the judiciary as per Article 22 of the Constitution: "The State shall ensure the separation of the judiciary from the executive organs of the State." The government has failed for establishment of the office of Ombudsman in accordance with Article 77 and also violated Article 59 for formation of elected local governments in every administrative unit.

The crucial factor in conducting a credible election is the credibility of the EC and the CTG. But unfortunately, the credibility of both the CTG and EC has been undermined in a series of events. Politicization of the EC has created suspicion and misgiving in the public minds about its ability to hold free and fair national elections. An undisputed voter list is the most important prerequisite for holding a fair election and the highly controversial EC has miserably failed so far to accomplish the task amidst widespread allegations that the updated voter list contains over one crore fake voters.

Considering the much-talked about report of the NDI, the EC launched a door-to-door visit program from December 8, to identify the erasable names of voters enrolled in the voter list. But accuracy of the voter list still remains questionable even after the latest 10-day drive of the EC for its correction. According to the media reports, thousands of people, who are eligible to be voters, sill have been left out, as the EC official failed to cover most houses in the capital and elsewhere in the country. A credible or meaningful election is impossible with such a dubious voter list.

The pertinent question that encompasses all of the above is, who is the constitution for, the government or the people? If the Constitution is for the people, the constitutional right of the people to exercise their voting power in a free, fair and peaceful manner must be ensured. Holding of election within the 90-days time-frame is a constitutional confine, which is apt to be dominated by the ground reality.

The CTG as well as the EC is yet to convince the nation that the election for which it is so eagerly waiting will be free, fair and meaningful. The claim of the AL-led grand alliance for compensation of loss of 45 days time cannot be ignored. It is therefore incumbent on the CTG to find a compromise formula acceptable to all to overcome the constitutional inadequacy for the paucity of time.

The author is a columnist of The Daily Star.