a) Non-party caretaker government constituted under Article 58C, and a real transfer of power to that government.

b) An independent Election Commission preparing a lawful voter list.

c) Both the caretaker government and the Election Commission together ensuring a level playing field in every respect.

Our constitutional right, and the legitimate expectation from a non-party caretaker government, was nipped in the bud when President Iajuddin Ahmed, instead of appointing the appropriate designate under the Constitution, assumed the power of the chief adviser himself and started functioning not according to the collective decision but unilaterally. It is because of this that the balance of power between the Constitution and the government was destabilised. Secondly, the draft voter list was not prepared nor published according to the directive of the Supreme Court, nor did it conform to the transparency requirement. Furthermore, no opportunity was given to the people to inspect the voter list.

The intending candidates formally applied in all 300 constituencies for copies of either the draft or the final list, but received the reply that they were not available. All the major political parties went to court with writ petitions challenging Professor Iajuddin's assumption of the office of chief adviser. They were asking for direction to publish the voter list before announcing the schedule, and also to direct the chief adviser to act collectively along with the 10 advisers in all matters, including the appointment of new Election Commissioners.

Copies of the petitions were served on the learned attorney general on November 26. They were due to be heard the next day, and it was done with the concurrence of the attorney general. Following the filing of those writ petitions, the attorney general went to the Bangabhaban. The secretary of the Election Commission was also summoned. The very next morning, November 27, the election schedule was announced, followed by the appointment of two new election commissioners. The two remedies sought by way of the two writ petitions were thus frustrated by preemptive moves.

On the next day, November 28, when the writ petitions were to be heard, the attorney general insisted for time/adjournment. His prayer was reinforced by the presence of former ministers and lawmakers. Ultimately, the case was fixed on November 29 when the court heard submissions from both sides extensively and the matter was to come up next day for order. However, on November 30, the attorney general came up with an application for the formation of a larger Bench. The court said that it would consider the same after issuance of the 'Rule'. This was because there was no reason or precedence for the formation of a larger Bench at this stage, particularly when the court had decided to issue a Rule. When the court formulated the terms of the Rule about to be dictated, the learned attorney general submitted that he would show a precedent at 2p.m. On this premises, the court decided to pass the order after the recess.

Soon after the court resumed the attorney general appeared with a file containing an order made by the Honorable Chief Justice. A hand-written on the attorney general's "petitions" (of which the other side have had no copy so far), stating the proceedings of the three writ petitions. As a result, the fate of the three writ petitions is hanging in uncertainty. Since it is not a judicial order and is not covered by the administrative power under the Rules, it is not yet known how to redress it.

In this context, getting no constitutional and lawful remedy through the court system, or through all the attempts and persuasion of the advisers, what are the options for restoring the constitutional process for holding an election? Four advisers have already resigned identifying the main obstacle. Everyone by now realizes that the obstacle is none but the president who usurped the office of the chief adviser, acting unilaterally.

Under these circumstances the plea for having an election within the stipulated 90 days, as if the Constitution will fall or collapse if the election is held beyond the 90 days deadline, needs careful scrutiny.

Here is an attempt to explain how Article 123 (3) can be considered in its proper context.

The Constitution is the basic document, which preserves the system of governance, the rights of the people and its supremacy. All powers in the Republic belong to the people. The people's ownership cannot be exercised without right of franchise. The highest court of our land, in its judgment on preparation of voter list while giving direction to the Election Commission, held that: "In order to make democracy successful election of the representatives in a free and fair manner is indispensable."

The first element is an acceptable voter list in which the names of all eligible voters are enrolled. As the Court said: "In order to ensure a fair and free election a flawless electoral roll is necessary." Secondly, there must be a level playing field. Under our Constitution, a non-party caretaker government should ensure a neutral administration and equal opportunity in all respects, particularly in the government owning media and other areas. The Election Commission must make available a transparent voter list, and ensure everyone's access to it in a draft form so that necessary corrections and modifications can be made. These essential prerequisites are not present.

Without a voter list yet in sight how can there be an election schedule, or a free and fair election? Those who are now at the helm of the affairs do not seem to be interested in a transparent and flawless voter list. All that they are bent upon is holding the election in any way within 90 days, of which more than half have already been wasted.

With a view to look for a solution, it is necessary to remedy two major violations of the Constitution.

Firstly, what is needed under the Constitution is a non-party caretaker government. It is yet to be constituted as per Article 58C. Let the office of the president and that of the chief of the caretaker government be bifurcated, and an appropriate Constitutional designate under Article 58C be installed in order to bring the Constitutional process back on the rails. According to the provisions of 58C(3) and (4), if read together, then the last retired chief justice having declined. The immediate past retired chief justice, preceding Justice Hasan, who has not reached the age of 72, could be made the chief adviser.

Secondly, the Election Commission, having failed to discharge its primary responsibility of preparing and publishing the voter list in time, despite the Supreme Court's direction as per law and the Constitution, should be asked to resign. A proper Commission also needs to be reconstituted. This will be in conformity with the observation of the Supreme Court, as it has found the dismal situation in the Commission itself. Mr. Justice Amirul Kabir Chowdhury observed: "We have adopted a democratic Constitution. However, making it a success requires that those responsible for making democracy successful should discharge functions in accordance with the Constitution."

The question is, have the president and the Election Commission discharged their functions in accordance with the Constitution. If not, this must be remedied. An assessment must be made by a properly installed chief adviser and the EC as to how long it would take to get a voter list prepared and published. Then the election schedule should be declared in consultation with the major political parties.

There is no express bar under the Constitution to holding the election beyond 90 days. Such an election, whether held within or beyond 90 days, cannot be challenged. The Constitution protects such elections under Article 125 (b). Only an election petition, which can be made on the grounds of malpractice and corrupt practices materially affecting the election results, can challenge an election and on no other grounds can such elections be challenged.

Barrister Amirul Islam is a Senior Advocate, Bangladesh Supreme Court.