Bottom Line
Constitutionality of the caretaker government
Recent media reports suggest that the constitutionality of the current non-partisan caretaker government (CTG) has again been raised by some quarters. This debate has re-emerged, according to some commentators, possibly because some confusion was injected when an adviser described the CTG as a "national government," although he later tried to explain why he did say so.
Certain views have been reportedly expressed, questioning the constitutionality of this government. A view was expressed that there cannot be two CTGs under the constitution.
Another view is that since 90 days have passed without any election being held, the CTG has not fulfilled its purpose and, therefore, its validity is questionable. Another view is that no prior consultation with major parties took place before the president appointed the chief adviser on October 12, last year.
Many legal experts find that the above views are misconceived because they appear to have been advanced on the misinterpretation or mis-reading of the relevant articles of the constitution. They argue they are not tenable for the following reasons:
First the constitution must be read as a whole, and should not be interpreted out of context or on a piecemeal basis. The meaning and spirit of the articles of the constitution are lost if one chapter or part of the constitution is considered without its other parts.
Second, there is no bar in the constitution for the president to appoint a second CTG, in the event that the first one is found to be incapable of holding an election in a free, fair, and credible manner.
Third, it is argued that the 90 days period in terms of Article 123(3) of the constitution in holding the election is only instructive (directory) and not mandatory, despite the usage of the word "shall" in the article.
The language in the constitution cannot be read in a vacuum, and has to be read taking into account possible intervening circumstances, such as natural disasters (for example flood or earthquake) or a prospect of a civil war erupting. Obviously, it is impossible to hold the election in such circumstances.
An article is to be interpreted as mandatory when it has to be acted upon, regardless of any possible intervening circumstances.
Fourth, Article 58D (2) of the constitution provides that the general election of members of parliament must be held "peacefully, fairly and impartially." This is a constitutional obligation for the CTG. This means that a congenial environment must be created prior to holding the election in peaceful, fair and impartial.
Against this background, if 90 days cannot create a congenial environment for impartial election, it is argued that "election for election's sake" contravenes this provision of the constitution. Article 123(3), i.e. 90 days must be read with holding of election "peacefully, fairly and impartially" in terms of Article 58D (2) of the constitution.
Both Articles 123(3) and 58D (2) of the constitution must be read together, and one cannot be interpreted without the other. That means one cannot pick and choose one article, ignoring the other one.
Fifth, consultation with the major parties prior to the appointment of the chief adviser, as required under Article 58C (5), is argued to be optional because after the word "consultation," the phrase "as far as practicable" occurs in the Article. This means that consultation is conducted if it is practicable for the president. This significant pre-condition to consultation is often ignored.
The circumstances under which the Fakhruddin government was installed need not be repeated. Suffice it to say that the president had promulgated emergency on January 11 and the Fakhruddin government was sworn in on January 12. If the president did not fit it appropriate, in his judgment, to consult the major parties under the exceptional circumstances, it is consistent with the provision of the constitution.
Sixth and finally, it is argued that in 1990, the Shahabuddin government was constituted beyond the confines of the constitution because "the doctrine of necessity" was invoked given the then political situation. Later, it was ratified by the elected government.
Similarly, what the non-party caretaker government has been doing to create a playing level field for all political parties needs to be ratified by the next elected parliament for the sake of democracy and national interests of the country.
The AL leader asserted at one stage that if she were elected as the prime minister her government would ratify the actions of the CTG.
What is the duration of the caretaker government?
The duration of the CTG is a separate issue, and does not rest on holding the election within 90 days. There is a separate article in the constitution, which deals with the duration of the CTG. For ready reference, Article 58B is quoted below: "There shall be a non-party caretaker government from the date on which the chief adviser of such government enters upon office after parliament is dissolved, or stands dissolved by reason of expiration of its term, till the date on which a new prime minister enters upon his office after the constitution of parliament." The above provision makes the duration of the caretaker government palpably clear. Its tenure expires only when a new parliament is elected and a new prime minister takes his/her office. The tenure of the government is not to be confused, and has nothing to do with the 90 days period of the election. Against this background, and the reasons cited above, many legal experts argue strongly that the CTG adequately meets the constitutional provisions, and any contrary view is misconceived and constitutionally untenable. Barrister Harun ur Rashid is former Bangladesh Ambassador to the UN, Geneva.
The duration of the CTG is a separate issue, and does not rest on holding the election within 90 days. There is a separate article in the constitution, which deals with the duration of the CTG. For ready reference, Article 58B is quoted below: "There shall be a non-party caretaker government from the date on which the chief adviser of such government enters upon office after parliament is dissolved, or stands dissolved by reason of expiration of its term, till the date on which a new prime minister enters upon his office after the constitution of parliament." The above provision makes the duration of the caretaker government palpably clear. Its tenure expires only when a new parliament is elected and a new prime minister takes his/her office. The tenure of the government is not to be confused, and has nothing to do with the 90 days period of the election. Against this background, and the reasons cited above, many legal experts argue strongly that the CTG adequately meets the constitutional provisions, and any contrary view is misconceived and constitutionally untenable. Barrister Harun ur Rashid is former Bangladesh Ambassador to the UN, Geneva.
For all latest news, follow The Daily Star's Google News channel.
Comments