SOVEREIGNTY has normally a wider dimension. It may be that of a state and its people, as well as that of the constitution and parliament. While Bangladesh and its people are sovereign, it does not hold good, subject to a degree, for our constitution and parliament, for political wrongdoings or inactions that have caused heavy inroads to the flavours of sovereignty to both the constitution and parliament.
The following highlights may bring up ins and outs of some of them:
The short order of the Supreme Court judgement on the 13th amendment to the constitution was given on May 10, 2011 but the long order, i.e. the detailed order, was given on September 16, 2012, i.e. 16 months later. Meanwhile, the chief justice concerned had retired, on May 18, 2011.
The reprinting of the constitution was done in February 2011, three months before the short order.
The 15th amendment to the constitution, based on the court’s judgement on the 13th amendment, was passed in parliament on July 3, 2011, i.e. two months after the short order but 14 months before the long order. How could a bill have been prepared and passed in parliament before the long or detailed order was issued? What was the hurry for?
The Supreme Court may advise the government on the repeal-ability of certain provisions of the constitution or laws through parliament as it deems fit because those are voidable or inconsistent and ultra vires, and parliament will then pass bills as it considers appropriate. Giving in any power that legitimately belongs to parliament will be tantamount to dwarfing the authority of parliament.
The Supreme Court in its verdict on the 13th amendment says—both in the short (May 10, 2011) and long (September 16, 2012) orders—that while the amendment is ‘prospectively’ declared void and ultra vires the constitution, the 10th and 11th general elections may be held under non-party caretaker government, subject to some modifications in its composition. There is no ambiguity in the judgement on the principles of non-party caretaker government for the 10th and 11th parliamentary elections, except that of its composition.
The judgement on the 13th amendment condoned and upheld nationality as ‘Bangladeshi’, state religion as ‘Islam’ as well as Bismillah... in the preamble. It did also advocate for more power to the people. It is an enigma to many of us as to why the Supreme Court did not condone holding of referendum, i.e. after Article 142 (1) (b), clauses 1 (A), 1 (B), and 1 (C). We cannot stop people who say that the necessity to condone holding of referendum in order to amend some vital articles of the constitution have not been felt in order to facilitate the government to incorporate any amendments that it feels necessary to prolong its rule. The un-condonation of the provisions for referendum is absolutely an anti-people philosophy, may even be construed as mala fide.
The verdict on the 13th amendment, both in the short and long orders, is clear and unambiguous, for the elections to the 10th and 11th parliaments need to be held within the framework of non-party caretaker government ‘prospectively’, subject to ‘Parliament... at liberty to bring necessary amendments excluding the provisions of making the former Chief Justice... as head of the Non-Party care-taker Govt’. The irony of fate is that the present government has taken the plea that it is simply abiding by the verdict to do away with the system of non-party caretaker government, turning a blind eye to the word ‘prospectively’ for the 10th and 11th parliamentary elections.
Abolition of non-party caretaker government was also not in the manifesto of the Awami League before the elections to the ninth parliament.
Article 72 (3) says parliament stands dissolved on the expiry of five years from the date of its first meeting and Article 123 (3) (a) says election has to be held during the preceding 90 days when dissolution takes place upon expiration of its term, i.e. 5 years, and 123 (3) (b) says that in case of other dissolution, i.e. before 5 years period, election is to be held within 90 days after such dissolution.
For example, Article 123(3) (a) says election needs to be held during the preceding 90 days of dissolution and Article 72 (3) says the term of parliament is 5 years. How can one hold election in the preceding 90 days from that of the end of the 5-year term? MPs will remain MPs until the last day before dissolution. It is thus impossible without violating the constitution to hold election. The government may now say many things but without a judicious amendment, election is not possible.
On the other hand, should parliament be dissolved earlier, maybe a deliberate attempt, than the 5-year tenure, e.g. say October 25, 2013 the case in point, then as per Article 123 (3) (b) election must be held within 90 days, i.e. on January 23, 2014, a case in point. Existing MPs will no more function as MPs after October 25, 2013. Though there is no bar on earlier dissolution, the tricky game will in such case bring the cat out of the bag because such process coupled with the prime minister’s position to function as head of the interim government (perhaps with 20 ministers/advisers) may be implemented repeatedly time and again. This way parliament shall never complete 5 years of tenure, a highly mala fide approach.
The ninth parliament held its first meeting on January 25, 2009. Hence, five years shall be completed on January 24, 2014. The trick is simple, i.e. if parliament is dissolved on October 25, 2013 it is then an earlier dissolution and Article 123 (3) (b) be applicable and dissolution a day (or a few days more) later than October 25, 2013 then dissolution takes place within 90 days prior to five years tenure, in such event neither Article 123 (3) (a) nor 123 (3) (b) can be made judiciously applicable, because 90 days period is crucial and neither Article 123 (3) (a) nor (b) will be implementable.
It is clear that the whole concept is beyond the spirit of the constitution and that of the people’s aspiration.
Some of the stalwarts of the Awami League have been quoting Article 57 of the constitution and saying that the prime minister shall remain in office until a successor enters her office, thus no election means no successor and this shall allow the present prime minister to prolong her rule and, maybe, to perpetuate. The story of a few blind men in assessing the size of an elephant is well known, e.g. it is like big log of wood (leg), it is like a tray (kula), i.e. ear, and so on.
AL stalwarts are now playing the blind game quoting Article 57 only and leaving aside Article 72 (3) and 123 (3) amongst others as if they are saying that an elephant does look like a log only. It may seem to be highly immoral, mala fide and utter violation of the Constitutional provisions. One has to read the articles together and then find out the spirit of the constitution as a whole.
Let us now go back to the days before the 9th parliamentary elections. The Bangladesh Nationalist Party started losing its public support when the late president Iajuddin Ahmed put himself as the chief adviser of the non-party caretaker government without exhausting the laid down options as per Article 58 C (5). It was the beginning of losing the ground for the BNP. People may not be so much educated but take right decision at the right time and do not put up, in the ultimate analysis, with any violations of the constitution.
Unfortunately, we do not learn the lesson from history. By repealing the system of non-party caretaker government, taking it out from the page of the constitution in spite of the Supreme Court’s verdict for ‘prospective’ arrangement for non-party caretaker government for the 10th and 11th parliamentary elections, the present government has dug a canal inviting crocks for its own downfall. The government has already blown the whistle for the game.
Finally, the prime minister on August 18 said the government would not budge by a hair from the constitutional provisions and therefore no non-party caretaker government.
Political dialogue always leaves some scope to manoeuvre. I look at the utterance differently. A hair has two ways of measurement, i.e. its diameter and its length. The diameter leaves no or little scope for further dialogues. The chapter then becomes almost closed. But the length is variable. One Asha Mandela in Atlanta has her hair length up to 55 feet, a Guinness Book record. Whether the prime minister’s utterance was meant for diameter or length one would wonder to perceive but I consider it, in political game, the length, i.e. there is some opportunity for dialogue and settle thus the score acceptable to the people, for our democracy must be people’s democracy, the country must be people’s state and so be our parliament and the constitution. In simple terms, it is people’s parliament and people’s constitution. The government must, therefore, act, listen and obey the dictates of the people. There can be no anti-people amendments in the constitution, e.g. abolishing wrongly the provision of referendum, no anti-people interim government, as a recent survey shows 90 per cent people now want non-party caretaker government. Another major factor has to be borne in mind and that is when the prime minister said on August 18 that she would not budge by a hair from the constitution, it meant the constitution as it stood on August 18. Needless to mention, without further amendment to Articles 72 (3) and 123 (3) no election may be held, i.e. literally no way out. The paramount objective is the spirit of the constitution and parliament.
Whatever may be the interpretation of the constitutional provisions, the spirit must be conceived properly and be upheld, likewise to dwarf the authority of parliament with an excuse of motivated or ill-explained or ill-interpreted judgement by either side of the political divide will receive no condonation of the people.
The key issue for all is: please maintain the ‘spirit’ spiritedly, spiritually, and mundanely with politico-sportsmanship.
Abdul Mannan is adviser to the chairperson of the Bangladesh Nationalist Party