After the liberation of Bangladesh through an armed struggle against the oppressive regime in 1971, the fundamental principles of the 1972 Bangladesh Constitution have been laid down in its preamble. The paragraphs in the preamble are important in order to appreciate the basic framework of the Constitution.

One of the fundamental principles of the Bangladesh Constitution, as enumerated in the preamble, is democracy. Democracy, in essence, means rule of law (not by law only), free and fair election, respect for opposition political parties, and free and robust media.

In countries where there is no written Constitution, such as in Britain, certain documents, for example the Magna Carta of 1215, guide its democratic principle.

Debate on the time limit for holding election:

At present there is a heated debate in the country as to whether the election can be held after 90 days. One view is that it can be held, and does not materially breach the Constitution, to meet national exigencies. The other view is that the election has to be held "within 90 days" after Parliament is dissolved.

Both the views are based on interpretation of the provisions of the Constitution. The former is based on liberal and contextual interpretation, while the latter is rooted in strict and literal interpretation.

Rules of Interpretation
Ordinarily the rules of interpretation are as follows:

(a) The Constitution must be read as a whole, and the meaning is not determined merely by particular words or phrases.

(b) The words can be given a meaning that is in conformity with the text and spirit of the Constitution.

(c) If the words lead to an unreasonable interpretation, the method of interpretation will be to ascertain what the framers of the Constitution meant when they used those words.

(d) Particular provisions should be interpreted in such a manner so as to give effect to the purpose and objective of the Constitution.

(e) Any previous practice in the application of the provisions of the Constitution should be the guide in interpretation of a particular provision of the Constitution.

(f) A provision must be read as a whole, and sub-clauses must not be detached from its meaning and purpose as a whole.

Doctrine of Necessity
Besides the above methods of interpretation, another principle has been added, namely, the doctrine of necessity.

In 432 BC, the Spartans went to the oracle of Delphi to ascertain whether they should go to war against Athenians or not. After receiving a positive response, the Spartans urged the Corinthians: "Delay not, we have arrived at the moment of necessity."

Before I deal with the legal meaning of the doctrine of necessity, a few words need to be said about the meaning of "necessity."

Throughout the ages, many scholars have echoed the Corinthians' call of necessity to different exigencies of different situations.

Scholars have variously defined necessity, but the consensus is that certain actions need to be taken by taking into account the complete and just view of circumstances in a given situation. In essence, there must be a linkage between justice and necessity. The solid ground of reasoning of necessity is drawn from past experience.

Let me cite an example of how the doctrine of necessity was applied in the legal field. In 1954, there was a legal challenge on the dissolution of the first Constituent Assembly by the deposed speaker. The Chief Justice of Pakistan's Supreme Court, Justice Munir, decided in favor of the dissolution.

The basis of the decision was the "doctrine of necessity," meaning that to preserve the country the Constitution had to be abandoned.

This means that the Constitution is for the people and the country, and if it is necessary to preserve the integrity of the country from chaos and instability or civil war it may be liberally interpreted.

Instances of breaches of the Constitution
The pillars of the Constitution are Part 1, Part II and Part III. Part 1 deals with the constitutional framework and territory of Republic of Bangladesh wherein all powers are vested in the people. Part II lists the "Fundamental Principles of Policy" by which the Republic would be governed, and Part III incorporates the "Fundamental Rights" of people.

Many of the fundamental principles of the Constitution are being violated. Did the successive governments since 1975 care?

For example, Article 22 provides that: "The state shall ensure the separation of judiciary from the executive organs of the state." Although the word "shall" has been employed in the Article, this provision remains unfulfilled to this day. Is it not a gross violation of the Constitution? How did the past successive governments neglect, or ignore, its implementation?

Another requirement of the Constitution is that the local governments shall consist of elected representatives who would administer local areas (Article 59 read with Article 11 of the Constitution). Again the word "shall" has been used in Article 59. This provision is yet to be implemented.

I cite these instances to bring home the point that there have been many violations of the provisions of the Constitution, but no government in the past has bothered about them.

Reasons for extending the 90-day time limit:

The question is: Does the provision relating to the holding of election within 90 days allow an extension of the time limit? There are several reasons why the 90-day time schedule can be extended, and some of them deserve mention:

First, in 1990, after the fall of the Ershad government, the provisions of the Constitution did not act as barriers to implementation of democracy.

For instance, in 1990, the appointment of the then chief justice as the vice-president (so that he could later assume the office of the president in the caretaker government) after the dissolution of the parliament was unconstitutional because the vice-president had to be elected by the parliament.

Since the parliament had been dissolved, there was no scope for appointment of a new vice-president. Furthermore, the president was subsequently allowed to return to his office of the chief justice after the elected government was formed.

How and why were these actions taken? Did not these steps constitute breaching or violation of the provisions of the Constitution? It is noted that these steps were taken to preserve democracy and were later validated through amendment of the Constitution post-facto (after the event) in 1991.

Second, Article 123 (3) that provides that the 90-day limit for holding elections has to be read as a whole, and not piecemeal. The Article has 4 sub-clauses, and one of the sub-clauses claims that to fill the seat of a Member of Parliament the 90-day time limit can be relaxed in the case of an act of God. Act of God may be interpreted to mean unforeseen circumstances or circumstances beyond control.

One may easily argue that if a by-election can be held beyond the 90-day limit, the general election can also similarly held after 90 days.

Third, if the 90-day limit is not extended it is argued that the principle of democracy, enshrined in Article 8 of the Constitution as being one of the "Fundamental Principles of Policy," would be violated.

Article 8 arguably is more substantial than Article 123. Article 123 is merely a procedure or method to implement Article 8, the principle of democracy.

Fourth, the provisions of the Constitution are not dead letters, and can be adapted to ensure the participation of the largest number of people in elections through multiple parties.

Fifth and finally, it is argued that the provisions of the Constitution in respect of fundamental rights cannot be violated because they are enforceable by higher judiciary under Article 102 of the Constitution. Fundamental rights are those rights that cannot be taken away by legislation or amendment of the Constitution.

The expression of the will of the overwhelming majority of people of Bangladesh needs to be acknowledged in conducting a fair, free, peaceful and credible election.

It is strongly argued that the 90-day limit for holding the election, as specified in Article 123 of the Constitution, can be extended for protecting, preserving and defending the principle of democracy. One of the fundamental principles of state policy, otherwise Article 8 of the Constitution that enshrines the principle of democracy would be grossly violated.

It is desirable that the president, in terms of Article 106, seeks opinion from the Appellate Division of the Supreme Court on this subject and resolves the issue soon.

Barrister Harun ur Rashid is a former Bangladesh Ambassador to the UN, Geneva.