Election beyond 90 days: Legitimacy and constitutional ways forward
Barrister Moyeen Firozee
At present the country is experiencing a real constitutional and political challenge. Both questions of preservation of constitutional order as well as maintaining political stability are hanging in the balance due to the recent political development of the country. Addressing the nation at the aftermath of the issuance of the Proclamation of Emergency, the President said it is not possible to hold an acceptable election within the stipulated 90 days as it is imperative to prepare a flawless voter list as well as ensuring effective participation of all major political parties to hold a free and fair election. In such an event, the most important constitutional question is whether a legitimate election can be held beyond the stipulated time of the Constitution. Amended Art.123 (3) incorporated by the Constitution (Thirteenth Amendment) Act, 1996, reads as follows: “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.” Ninety days period for holding general election starts from the next day when the Parliament is dissolved. According to Art.72(3) dissolution of parliament occurs in two ways: (i) it stands dissolved on the expiration of the period of five years from the date of its first meeting; (b) the President may dissolve the Parliament earlier than its five-year term.
Although according to proviso to Art.123(4) time for holding bye-election can be extended for further 90 days if Chief Election Commissioner thinks due to an act of God such election is not possible within stipulated time, there is no provision in the Constitution for extension of time for holding general election. Mr. Mahmudul Islam in his 'Constitutional Law of Bangladesh' submits: “The framers of the Constitution having act of God in their contemplation and consciously not making any provision to meet such contingency in case of the general election, it must be held that the holding of the general election cannot be deferred beyond the period stipulated in Art.123(3).” In the case of Mahboobuddin Ahmed v. Bangladesh the High Court Division, in the context of bye-election, held that the provision of Art.123 is mandatory and the bye-election had to be held within the stipulated time. Besides, use of the word 'shall' tends to favour the mandatory interpretation of Art.132(3).
Despite strict stipulation in Art.123(3), there are some possible ways to hold a legitimate general election beyond 90 days maintaining constitutional spirit intact. Although none of the methods are full proof, to avoid the biggest constitutional and political predicament of the present time, they may pave the way for a rightful solution to the crisis. It may be mentioned that it is the Election Commission who has the authority in accordance with the Constitution as well as the Representation of The Peoples Order 1972 to declare the date of general election but under no circumstance the Election Commission can defer such date beyond 90 days.
The most likely solution could have been the amendment of the Constitution for extension of time for holding the general election by the Parliament. But such power can only be exercised by an existing Parliament under Art.142 following a special procedure. Since the present parliament is already dissolved and the President can recall a dissolved Parliament if the country is at war under Art.72(4), there is no scope for the Parliament to make such amendment to the Constitution at the moment.
The President's power, especially discretionary or residuary, in case of extreme necessity to go beyond what is apparent from the Constitution to tackle constitutional crisis is very important. Indian Supreme Court in Shamser Singh v. Punjab case implied certain discretionary powers of the President though no such power is clearly laid out in the Indian Constitution. In our parliamentary system of government role of the President is normally limited. But situation is completely different at the time of care-taker government. Care-taker government shall be collectively responsible to the President under Art.58B(2). President need not act in accordance with the advice of the Chief Adviser in exercising his functions under the Constitution as Art.48(3) remains ineffective during care-taker government by virtue of under Art.58E. Taking oath as President casts a duty upon the President that obliges him to preserve, protect and defend the Constitution. The President must have the necessary authority in discharging the duty of preserving, protecting and defending the Constitution, specially his discretionary power to save the country or the Constitution from destruction.
In the case of Reference by Governor General, Federal Court of Pakistan held that the President may promulgate an Ordinance without taking constitutionally required advice from the Prime Minister in a special circumstance and the doctrine of necessity will render such Ordinance valid. Lord Mansfield described the principle of necessity as follows: 'Subject to the condition of absoluteness, extremeness and imminence, an act which would otherwise be illegal becomes legal if it is done bona fide under the stress of necessity, the necessity being referable to an intention to preserve the constitution, the State or the society and to prevent it from dissolution'.
The doctrine of necessity was applied by the Pakistan Supreme Court in Asma Jilani, Begum Nusrat Bhutto and Zafar Ali Shah cases. In all these, doctrine of necessity was applied after a constitutional deviation occurred. In the present situation, notionally, holding general election is still possible on time. But in light of the political developments in past few months, holding general election leaving the boycotting political parties, will certainly cause major political crisis and the country will experience prolonged uncertainty which the President has acknowledged in his speech before the nation. Application of doctrine of necessity should not confine to past scenario but it should equally be applied if it facilitates to avert inevitable deserter. In terms of the doctrine of necessity, prevention should be more important necessity than just to clean up the dirty mess created in the past.
Deviation from the Constitution is not unprecedented in Bangladesh. With regard to Martial Law our Appellate Division in many cases, such as Halima Khatun v. Bangladesh, Joynal Abedin v. Bangladesh, Md. Salimullah v. Bangladesh, conceded that the moment the country is put under Martial Law, constitutional provision along with other civil laws of the country loses its superior position. In the subsequent case of Khandker Ehteshamuddin v. Bangladesh, the Appellate Division held, "It is true that Article 7(2) declares the Constitution as the supreme law of the Republic …, but the supremacy of the Constitution cannot by any means compare with the proclamation issued by the Chief Martial Law Administrator." Hence under unusual circumstances certain special provision can get primacy over the Constitution. If law framed by usurpers gets priority, there is no reason why law made by legitimate authority in hostile conditions should not be treated likewise.
To resolve constitutional crisis the President, as an immediate necessary action, may make and promulgate ordinance deferring the general election date beyond stipulated 90 days under Art.93. Although proviso(ii) to Art.93 prohibits such promulgation for altering or repealing any provision of the Constitution, it may be justified as a temporary measure [without altering or repealing Art.123(3)] by virtue of the President's discretionary or residuary power exercisable in case of extreme necessity to save the country and the Constitution which is embodied in the maxim salus populi est suprema lex (public welfare is the highest law).
The President has already issued a Proclamation of Emergency under Art.141A as he is satisfied that a grave emergency exists in which the security or economic life of Bangladesh is threatened by internal disturbance. Ordinarily prior counter signature of the Prime Minister is required for the validity of such proclamation, but during care-taker government, under Art.58E President alone can issue such Proclamation of Emergency.
Constitution has not clearly spelt out the extent of President's power under Art.141A. It does not provide any limitation on his power as well. As the whole purpose of Art.141A is to tackle emergencies and know/unknown contingencies, the Constitution does not bind the hands of the President defining his power within certain limits. But there is a common misconception regarding Fundamental rights. The issuance of the Proclamation does not automatically suspend the operation of the fundamental rights guaranteed under articles 36, 37, 38, 39, 40 and 42 of the Constitution. Art.141B gives the President an option to make laws or to take executive action inconsistent with those articles regarding fundamental rights Art.141C gives the President discretionary power (not automatic) to suspend the right to move before the court as well as to suspend all pending proceedings for enforcement of fundamental right during emergencies, but such power has to be exercised by issuing specific order if they are at all needed.
In order to clear any confusion that exists as to the mandatory effect of Art.123(3) and/or the application of doctrine of necessity and/or the exercise of President's power for deferral of general election beyond 90 days, the President under Art.106 may refer the matter to the Appellate Division of the Supreme Court for its opinion. In this process even if the Appellate Division opines that there is no scope for deferral under the Constitution, it may still exercise its inherent power to allow the Election Commission to conduct the election on this occasion within a specified time to uphold the Constitutional order and maintain political stability in the country.
If time for holding general election is extended beyond 90 days, it will be held under the care-taker government. Duration of the care-taker government is not confined to any express stipulated time. Under Art.58C(12) care-taker government shall stand dissolved on the date on which the Prime Minister enters upon his office after the constitution of new Parliament. Until new Parliament is constituted and new Prime Minister is sworn in care-taker government shall continue to function.
In the absence of express power in the Constitution and the fact that neither the care-taker government nor the Election Commission have the power to go beyond the constitutionally stipulated timeline, in order to avoid the inevitable, the President has the sole authority to defer the date for holding a legitimate general election beyond 90 days. The President can either pass an executive order under Art.141B (or an ordinance under Art.93) directing the Election Commission to that effect or to settle the matter once for all put the matter before the Appellate Division under Art 106 for their opinion.
The author is an advocate, Supreme Court of Bangladesh.