Power vs. law: The case against the govt.

M. Shahidul Islam

Resolution of any protracted crisis is dependent on the aggrieved parties conceding something in return for better collective interests. With public sentiments running high against a unilateral election in which the main and the majority of the opposition parties will not participate, it’s high time that the warring factions make some concessions for the greater interest of the nation and its people.
The ongoing political agitations may just vanish with one single move of the Prime Minister. Instead of asking repeatedly the main opposition BNP to name members of cabinet and join the poll, the PM should resign to create an ambiance conducive enough to holding a fair and credible election.

President’s prerogative
It’s not without reason that the legality of the government, as well as the Parliament, has been challenged through a writ petition in the High Court despite the PM insisting on November 21 that President Abdul Hamid had advised her to lead the election-time interim Cabinet.
The President’s prerogative to ask the PM to continue running the poll-time government is not backed by any legal wherewithal. Nor can it be as easily done as is said. The President has the mandate to promulgate an Ordinance any time when the Parliament stands dissolved or is not in session, if he is satisfied that “circumstances exist which render immediate action necessary, and, any Ordinance so made shall, as from its promulgation have the like force of law as an Act of Parliament” (Article 93(1). None is aware of any such promulgation having been made by the President, allowing the PM to act as the poll-time head of the government.
Our democracy is neither unique, nor shall it be irrational. In India, the President is the executive head of the union, with a mandate to appoint the PM and all other ministers (Artcle 74, constitution of India). The Prime Minister act as the head of the cabinet to aid and advise the President. In our instance, the Presidential verbal directive to the Prime Minister to run the poll-time government is alarming; despite nothing disqualifying the PM from holding office until his/her successor has entered upon office (Article 57(3)), or, if he/she ceases to be a Member of Parliament (Article 57(1)(b).
Politics and governance can not deviate from the quintessential matrices of equity, justice and fairness. In the UK, a general election is held on a fixed date (as of 15 September 2011), every five years. When Parliament is dissolved, every seat in the House of Commons becomes vacant and MPs immediately revert to being members of the general public and lose all the privileges associated with being Members of Parliament. They are allowed to enter the Parliament only to remove papers and equipment from their offices. All facilities and services for MPs at Westminster are closed at 5 pm on the day of the Parliament’s dissolution. This is done to ensure a label playing field in the election. What makes our Parliament legal until after the conclusion of the election is curious not only from the perspective of the unfairness it creates for opposition candidates, it’s unprecedented, unjust and unfair. In Canada and Australia, Governor General can dissolve Parliament under a varied circumstances; mostly relating to constitutional crises, unfairness, no confidence on the government, and albeit, expiration of term. Our President is dithering on the interpretation of law on one hand, and on his partisan loyalty to the ruling party, on the other.

SH/Interpretation of law
In our case, if the Parliament is deemed as functional until January 24, 2014, new laws to overcome the evident hamstring facing the election should have been enacted pursuant to Article 124, instead of the President verbally mandating the Prime Minister to carry on as the poll-time PM.
The fact that has not been done, or not being done, is due the Parliament being deemed as dysfunctional as of October 24, pursuant to Article 123, which states in sub clause (3)(a) that a general election shall be held within 90 days preceding the dissolution of the Parliament if that dissolution occurs by reason of expiration of its term. This also implies that the Parliament is dormant, if not dissolved, as of October 25. The 15th amendment intentionally did not clarify this obfuscation to keep the incumbent PM as the poll-time chief executive of the nation.
Above all, the cabinet not having been dissolved, it too runs out of mandate pursuant to Article 58 (1) that states: “The office of a Minister other than the Prime Minister shall become vacant (a) if he resigns from office by placing his resignation in the hands of the Prime Minister for submission to the President,” which the incumbent ministers did.

SH/Legality of army deployment
The ongoing problems stem from the inherent contradictions in the 15th Amendment to the Constitution which has vested all the powers on a single individual, the PM; giving rise to the spectre of autocracy, of dysfunctional administration, of paralysis in decision making, and, the return to the October 2006 syndrome when a series of CGs failed to stem the tide of street agitations, and, the military stepped in. Part of the problem also stems from the amended RPO which has been tailored to favour the partisan interest of the ruling AL.
Foremost, it can not be deemed as a fair situation when the PM will commandeer all the executive authorities – civil and military – during the polling time, and, it will be entirely on her discretion whether the EC will get the needed cooperation from the executive branches of the government pursuant to Article 126 of the Constitution.
Secondly: The CEC’s declaration on Monday that army would be deployed for election duty is illegal under the existing RPO. The amendment to sub para XXIaa of para 2 of the Election Commission Act 1972 (aka RPO 1971) has snatched away the EC’s right to call the members of the armed forces to quell election-time unrest due to the amended definition of the “law enforcing agency” meaning only the Police Force, Armed Police Battalion, Rapid Action Battalion, Ansar, Battalion Ansar, BGB and the Coast Guard Forces.
Thirdly: From a Constitutional perspective, the President too is not mandated either to order an army deployment, despite being the Commander in Chief of the armed forces, unless emergency is declared pursuant to Article 141A(1) and the aid of the armed forces is sought to preserve law and order under the pretext of national security facing grave danger.
Then again, the imposition of emergency not offering a mandate to suspend the Constitution, election must take place by January 24, 2014(Article 123), and, the legal validity of an emergency being only for 120 days unless ratified by the parliament (Article 141A(2), the festering constitutional crisis will exacerbate further.
Based on the legal complications outlined above, and the ground reality prevailing in the country, the PM shall quit power immediately and the President shall make an acceptable arrangement through special Ordinance so that all the major political parties can join the poll and the nation and its people are spared from the hellish experience they’re enduring now.

Source: Weekly Holiday


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