Presidential ordinances to become scarce
Extensive promulgation of presidential ordinances during caretaker governments will no longer be possible, as the president's sweeping legislative authority, in absence of a parliament, has been declared void by the apex court of the country.
The same will also be applicable for any outgoing elected government between the dissolution of a parliament and formation of a caretaker government, legal experts said.
The original 1972 constitution allowed presidential ordinances on any urgent matter when the parliament would not be in session, and only to meet urgent financial expenditure from a consolidated fund, at the president's discretion, when the parliament would stand dissolved.
The framers of the original constitution did not foresee a situation when the country would be governed by a caretaker government, devoid of a parliament.
According to the original constitution, a parliamentary election would be held within 90 days prior to the normal dissolution of a parliament, and in case of a sudden disbandment the poll would be held within the following 90 days.
In 1996, against a backdrop of agitation by Awami League and an electoral stalemate between AL and BNP, the then parliament brought the 13th amendment to the constitution introducing the system of caretaker governments.
A caretaker regime is to assist the Election Commission in holding parliamentary polls within 90 days following a parliament's dissolution, in all cases.
But the president's sweeping authority to exercise the parliament's legislative power was ensured years before in 1978, when military ruler Gen Ziaur Rahman, who also assumed the office of the president, amended article 93 of the constitution through a martial law proclamation.
The proclamation empowered the president to promulgate ordinances on any matter even when the parliament stood dissolved.
The 5th amendment to the constitution ratified all actions of that martial law regime between August 15, 1975 and April 9, 1979.
Now with the Supreme Court's recent nullification of the 5th amendment, the changes brought to the original article 93 also became void.
Eminent jurist Shahdeen Malik told The Daily Star recently, "It means the wholesale power of the president to promulgate ordinances will not exist anymore when the parliament will stand dissolved, except on financial matters."
He said through the cancellation of the amendment to article 93, the parliament's legislative power has become consolidated and unrivalled.
A bloody coup on August 15, 1975 overthrew the first elected government of the nascent independent country, and the subsequent extra-constitutional martial law regime dissolved the first elected parliament on November 6, 1975.
Between August 15, 1975 and April 9, 1979 around 100 ordinances were promulgated by Khandaker Moshtaque Ahmed, Justice MA Sayem, and Ziaur Rahman, who successively grabbed the office of the president unconstitutionally.
Promulgation of presidential ordinances continued afterwards as well. Military ruler HM Ershad, who grabbed the state power on March 24, 1982 overthrowing the then elected president Justice Abdus Sattar, promulgated around 80 ordinances till 1986.
The immediate past president, during almost two years of the last caretaker government led by Fakhruddin Ahmed, promulgated 119 ordinances including some on financial matters.
The caretaker government led by Justice Latifur Rahman in 2001 also promulgated few presidential ordinances.
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