There are two sides to the argument in this legal case. One side challenges the validity of the government, and the other side will show that their case is misconceived and legally flawed.

In the following paragraphs I will discuss both sides of the argument and argue that the challenge is untenable in terms of the Constitution.

As I understand, the purported grounds, among others, on which the challenge is mounted against the constitutional validity of the government may run as follows:

First, their case reportedly rests on Article 123 (3) of the Constitution, wherein it is stipulated that "A general election of members of parliament shall be held within ninety days after parliament is dissolved, whether by reason of the expiration of the term or otherwise than by reason of such expiration."

The parliament was dissolved on October 27, and it is now more than six months but no election has been held. Rather, the election due on January 22 was postponed and, later, cancelled.

Second, the period of ninety days is incorporated in the Constitution on the ground that an elected government must be in place within that period after the dissolution of the elected parliament.

One of the core elements of the Constitution is that the people cannot be deprived of the right to vote for more than ninety days after the elected parliament is dissolved.

Third, the absence of MPs for more than ninety days is unconstitutional in the democratic framework of the People's Republic of Bangladesh. It is argued that all powers in the Republic belong to the people, and that the denial of the right to elect their representatives in the parliament within ninety days is inconsistent with the letter and spirit of the Constitution.

Fourth, the purpose of the non-party caretaker government is to give the Election Commission all possible assistance for holding the general election within ninety days, and since ninety days have passed the mandate of the government has expired, therefore it has no constitutional validity.

Fifth and finally, the president did not consult with the major parties before appointing the chief adviser as the head of the caretaker government, as required under Article 58C(5) of the Constitution.

In the light of the above grounds, it is argued the caretaker government cannot claim constitutional validity.

It is argued that the case built on the grounds in the above paragraphs is misconceived, and is advanced on the misinterpretation of the Articles of the Constitution. There are many reasons why the case against the government should not stand, and some of them deserve mention:

First, the Constitution must be read as a whole, and should not be interpreted out of context or on a piecemeal basis. The meaning and spirit of the articles of the Constitution are lost if one chapter or part of the Constitution is considered out of context.

Second, the duration of the non-party caretaker government is separate, and does not rest on Article 123(3) of the Constitution that deals with election. There is a separate article in the Constitution, which deals with the tenure of the caretaker government. For ready reference, Article 58B is quoted below:

"There shall be a non-party caretaker government during the period from the date on which the chief adviser of such government enters upon office after parliament is dissolved, or stands dissolved by reason of expiration of its term, till the date on which a new prime minister enters upon his office after the constitution of parliament."

The above provision makes the duration of the caretaker government palpably clear. Its duration expires only when the parliament is elected and the prime minister takes his/her office. The tenure of the government is not to be confused with the ninety days period of the election.

Third, Article 58D (2) of the Constitution provides that the election of the parliament must be "peacefully, fairly and impartially" held. This means that a congenial environment must be created prior to holding the election in such manner that the election can be peaceful, fair and impartial. Against the background, if ninety days cannot create the congenial environment, election for election's sake is unconstitutional. Article 123(3) must be read with Article 58D (2) of the Constitution.

Fourth, it is argued that the ninety days period for the election is only directory in nature. If an event such as natural disaster takes place within the stipulated period, can election be held within ninety days?

Obviously, it is impossible to hold the election in such circumstances. An Article is to be interpreted as mandatory when it is acted upon regardless of any intervening circumstances; accordingly Article 123(3) is not mandatory.

Fifth, consultation with the major parties prior to the appointment of the chief adviser, as required under Article 58C (5), is argued to be optional because after the word "consultation" the phrase "as far as practicable" occurs in the Article. This means that consultation is conducted if it is practicable.

The circumstances under which the Fakhruddin government was installed need not be repeated. Suffice it to say that the president had promulgated emergency on January 11 and the Fakhruddin government was sworn in on January 12.

If the president did not find it appropriate, in his judgment, to consult the major parties under the exceptional circumstances, it is perfectly valid and consistent with the provision of the Constitution.

Sixth, it is argued that in 1990 the Shahabuddin government was constituted beyond the confines of the Constitution, because the doctrine of necessity was invoked given the then political situation. Later, the elected government ratified it.

Similarly, what the non-party caretaker government has been doing to create a playing level field for all political parties would be ratified by the next elected parliament for the sake of democracy. The AL leader has already asserted that if she was elected as the prime minister her government would ratify the actions of the caretaker government.

Seventh and finally, it is argued that the provisions of the Constitution are not set in stone, and the Constitution is for the welfare of the people and not the other way round. There is overwhelming support of the people for the caretaker government, because of their on-going action against corruption, black money and muscle power that tend to affect the outcome of an election.

Against this background and reasons cited above, it is strongly argued that the caretaker government adequately meets the Constitutional provisions and the challenge is misconceived and untenable.

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