A. Mannan
DOOMS day has come, is in the offing, will soon come! We all know that cowards die many times before their death!
Quoted below is an excerpt from a news item of the 21 June 2013 issue of The Daily Star:
“Hasina says it again:
If caretaker govt takes over, it would not hold polls.’ Prime Minister Sheikh Hasina yesterday once again said, if a caretaker government takes over again, it would not hold any election and hand over power.
‘If it [caretaker govt] comes, it will try to stay in power till dooms day. It will come but it will not go. What will they [opposition] do then?’ she questioned”.
I am sure the honourable prime minister has not been properly briefed by the law ministry and advisers as to how, out of a tall list, a law can be framed with constitutional amendments to circumvent repetition of such usurpation of state power as happened on January 11, 2007.
An unconstitutional and/or extraneous power, whosoever that be, can overthrow a constitutional government, abrogate the constitution and dissolve parliament at certain propitious time of history, when they need no worthwhile excuses and continue to hold on to power as long as they are enabled to. In such a situation, any reasoning to legality is irrelevant and unfavourable in reality vis-à-vis the pretexts the usurpers will hold on to.
Our prime minister is, perhaps, right that the constitution, as it stood before January 11, 2007 on the caretaker government issues, left enough scopes for manoeuvrability by the usurpers of power to go unchallenged.
Ample scopes to amend constitution
We had contrarily ample scopes to amend the constitution as that prevailed before January 11, 2007, which will certainly minimise or bring down the attempts of the usurpers and open a platform for trial of the usurpers to face the burden of the constitutional violations; for, no sinners shall ever remain unpunished.
What surprises me is that the law ministry, and perhaps parliament, did not have time to go through Chapter III (Above Laws) of my book, Laws, Un-Laws, Above-Laws, Out-Laws and In-Laws, published in December 2009. No one is above the law, provided laws are amended, incorporated to take care of a 1/11 type of situation.
Scenario one
Should we hold on to the caretaker government as was in the 13th amendment of the constitution, it will then be necessary for the following amendment in order to tighten our belt.
In view of the gross abuse of emergency rule after January 11, 2007, Articles 58 B (1), Article 72 (3) and (4), and Article 141 A (2) (c) need amendments. The proposed redrafting may be in the following manner as a school of thought under the circumstances:
Amendments proposed to be made are as shown below –
1. Article 58 B(1) instead may read as follows:
There shall be a Non-Party Care-Taker Govt during the period from the date on which the Chief Adviser of such Govt enters office after parliament is dissolved or stands dissolved by reason of expiration of its term till the date on which either a new Prime Minister enters upon his office before expiration of the tenure of Non-Party Govt.
2. In Article 58 E, a provision as under may be added.
Provided that Article 72 (4) (a) and (b) shall become effective where occasion so arises for their applicability.
3. Article 72 (3) may be made clearer with the following additional proviso after the original proviso:
Provided further that after the termination of war, taking into cognisance of the provision of Article 72 (3), Chapter II A, Non-Party Govt. of the Constitution shall be applicable.
4. Article 72 (4) may be replaced by the following 72 (4) (a) and (b):
72 (4) (a): If after a dissolution and before the holding of the next general election of members of Parliament the President is satisfied that owing to the existence of state of war in which the Republic is engaged, having proclaimed emergency under Article 141 A (1) and (2) (c), the President shall dissolve the Care-Taker Govt. and in order to reconvene Parliament shall summon the Parliament that has been dissolved to meet and immediately thereupon Article 56 (3) and (4) shall become effective, when upon after the dissolution of the reconvened Parliament latest within six months after the termination of the war, normal procedure under Chapter II A of the Constitution for Non-Party Care-Taker Govt. shall come into force anew for holding general election:
Provided that the proclamation of emergency shall cease to operate at the expiration of thirty days from the date on which Parliament first meets after its re-convention unless before that expiration of the said thirty days a resolution approving the Proclamation has been passed by the re-convened Parliament.
72 (4) (b): If after dissolution and before the holding of the next generation election of members of Parliament, the President having been satisfied that proclamation emergency for reasons other than war has become necessary, shall proclaim ‘emergency’ under Article 141 A (1) and (2) (c) for 120 days to the maximum, when the Care-Taker Govt. must hold the general election within 90 days after withdrawal of emergency that falls on the date either earlier or latest by 120 days as the case may be, subject to adjustment of Article 123 (3) to accommodate additional days needed for this Article 72 (4) (b).
Provided that such emergency may be extended beyond 120 days, if it is so imperative, when the President dissolve the Care-Taker Govt. and in order to reconvene shall summon the Parliament that has been dissolved to meet and immediately thereafter Article 56 (3) and (4) shall become effective, when upon after the dissolution of the reconvened Parliament becoming effective by a resolution for such dissolution move by a member and adopted by of not less one-third number of members of Parliament, for casting such votes Article 70 shall remain ineffective, normal procedure under Chapter IIA of the Constitution for Non-Party Care-Taker Govt. shall come into force anew for holding general election.
5. The proviso of Article 141 A (2) (c) may be replaced as:
Provided that if any such Proclamation is issued at a time when Parliament stands dissolved or the dissolution of Parliament takes place during the period of one hundred and twenty days referred to in sub-clause (2c), the provisions under Article 72 (4) (a) and (b) shall be applicable.
Scenario two
Should a situation be that as it may, under compulsion though, an interim government, as laid down in the constitution, dated October 2011, it shall then require the following amendments in order to hold election, otherwise election as per Articles 72 and 123 as portended in the constitution, dated October 2011, shall be a futile exercise.
Article 123 (3) (a) decrees that election needs to be held during 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. There is no honest answer to it. It may, however, be circumvented by a makeshift amendment that upon declaration of election schedule MPs shall no more be MPs, i.e. it will construe a notional dissolution of parliament. Hence Article 123 (3) (a) is to be amended as:
i. Provided that this Article shall be operable subject to provision of Article 72(3).
ii. In other words, Article 72(3) needs to be amended as well with the proviso that ‘Parliament shall be dissolved within 5 years term but MPs shall stand as no more MPs upon declaration of election schedule.’
iii. Farther, Article 72(3) needs to be made effective subject to the proviso of the Article 123(3)(b) which in turn needs an amendment to the effect that: ‘Provided such dissolution takes place before 90 days preceding the expiration of its term.’
Scenario three
In a situation where both sides of the political divide agree to a formula with regard to the composition of the interim government (?), then just for holding the election, amendments as proposed in ‘scenario two’ above shall be necessary. And to stop usurpers taking over power, we shall require squarely amendments as per ‘scenario one’. However, it is needless to reiterate that the words ‘caretaker government’ have to be replaced with suitable and required modifications by ‘interim government’, subject to, of course, of the composition of such a government.
General election under CG or IG
The burning issue of the day is to hold the upcoming general election either under a caretaker government (CG) or an interim government (IG). It matters little as long as a neutral government takes over only to conduct the election free and fair. The need of the hour is to find a line best suitable where there appears to be a win-win situation for all amongst both sides of the divide.
Besides, it was well known to observers that these elections would be used as an example of the incumbent regime’s credibility to allow it to hold the upcoming national elections under its blotted aegis.
With an apology to the esteemed women force of the nation, I may quote Shakespeare: ‘I am ashamed that women are so simple to offer war where they should kneel for peace.’ Once an amicable accord is arrived at, the constitution may be amended in the above line suitably modified in order to put a stop for the potential usurpers having no easy and royal road to power.
When the prime minister advocates for an interim government as the constitution has now been amended thus, though on the wrong footing, she negates the caretaker government on a pretext that the old model of caretaker government will continue till the ‘dooms day’ and says further that even the leader of the opposition will have to go to jail as well.
Nobody told her that there are ways as above to solve the issue with a reasonable and judicious dimension, for a problem has normally many solutions dependent upon schools of thought.
Shakespeare wrote, ‘Doomsday is near: die all, die merrily’ [Henry IV, Part 1: Act IV, scene i]. One must not think that Bangladeshis are cowards and will die many times before their death. They die, once and for all, as they always do at times of need; for, it is only one ‘dooms day’ for them.
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The writer is adviser to the Bangladesh Nationalist Party chairperson, former lawmaker and former state minister for civil aviation and tourism. Email: [email protected]
Source: Weekly Holiday
