IT seems that we as a nation are in a real mess. The unilateral abolition of the caretaker government system by the present government through the 15th Amendment to our Constitution has created a mess of monumental proportion. The continuing inaction of the Election Commission has added a new dimension to it. The mass resignation of the ministers, on the request of the prime minister, has only accentuated the situation.
It may be recalled that because of the deep-seated mutual distrust among our political parties and as a result of the widespread agitation by AL and its allies, a system of Caretaker Government (CTG) was added to our Constitution in 1996. The last four-party alliance government, led by BNP, blatantly manipulated the system, making it quite controversial. The present government abolished it altogether, although its abolition was not in the ruling party's election manifesto.
It may further be recalled that on July 2010, a Special Parliamentary Committee was set up, with 15 MPs from AL and its allies -- BNP was offered representation which it refused to accept -- to recommend changes in our Constitution. In March 2011, the Committee unanimously recommended to keep the CTG as it did not want to, in the words of Mr. Tofail Ahmed, “unsettle” a “settled” matter. A month later, the PM led a team of AL leaders before the Committee and recommended reforming the CTG, rather than abolishing it altogether.
On May 10, 2011, the Appellate Division of the Bangladesh Supreme Court, in a 4 to 3 decision, declared the CTG unconstitutional while keeping the door open for continuing the system for two more terms, if the Parliament so desired. On May 29, the Committee again unanimously decided to keep the CTG with minor changes, such as limiting its term to 90 days and restricting the signing of foreign treaties. The next day, the Committee met the prime minister, following which it reversed itself and recommended the abolition of the CTG. In a month, the 15thAmendment was passed and the CTG was scrapped.
This turn of events -- the PM imposing her will on the legislature -- represented a flagrant assault on our constitutional scheme requiring “separation of powers” between the executive, the legislature and the judiciary. It goes without saying that the new Amendment does not embody the “will of the people of Bangladesh,” as claimed in the Preface of our Constitution, raising serious questions about its legitimacy. The 15thAmendment also made one-third of the Constitution unamendable, which is not legally tenable as one Parliament cannot bind another Parliament.
Clearly, the 15thAmendment represents an act of constitutional adventurism, and it is primarily responsible for the present deadlock on the nature of election-time government, the widespread violence and the resulting uncertainty about our next election. It may be pointed out that during the Committee deliberations, senior AL leaders like Tofail Ahmed, Amir Hossain Amu and Abdul Matin Khashru, to their credit, foresaw such complications and warned against the abolition the CTG.
Another mess was created by the present inaction of our Election Commission. Article 123(3) of our Constitution mandates the holding of elections to the 10th Parliament within the last 90 days preceding the expiry of the present Parliament. Thus, the “election cycle” has already started on October 27, requiring the EC to crack down on the unfair plays of the government in power. One cannot help but note that the government has also been acting in a business-as-usual manner, although it should have been in a caretaker mode and doing only routine work.
In addition, the prime minister has been traveling around the country laying the foundation stones of various projects and making promises that could affect the election outcome. More seriously, she has been going from place to place, using public purse and government machineries, to ask for votes. Such actions clearly are contrary to the concept of a level playing field for all concerned in electoral competition. They also violate the existing Code of Conduct (Section 12) -- adopted in 2008 and still valid -- which prohibits campaigning three weeks prior to the date of election. Yet the EC, in the most unabashed manner, is claiming that it has no power to do anything about the excesses of the government! One may recall that in India Allahabad High Court in 1975, in the famous Raj Narainvs Indira Gandhi case, declared the election of Indira Gandhi to Lok Sabha void because of the use of government machinery in her campaign.
Our Election Commission was created as a constitutional body to protect and promote the interests of the voting public by ensuring free and fair elections as a means to fostering democratic governance. In Altaf Hossain vs. Abul Kashem (DLR 45), the Appellate of Bangladesh held that the “Election Commission's inherent power under the provision of 'superintendence, control and direction' should be construed to mean the power to supplement the statutory rules with the sole purpose of ensuring free and fair elections.” When the EC fails to exercise such enormous power, it makes the electoral area very skewed, creating a sense of helplessness among citizens.
The most recent mess was created by the minsters' carrying out their official duties after tendering letters of resignation. According to media reports, all the minsters, on the request of the PM, submitted signed resignation letters to her on November 11. Article 58(2) of our Constitution states: “The Prime Minister may at any time request a Minster to resign, and if such Minister fails to comply with the request, may advise the President to terminate the appointment of such Ministers.”
The ministers have already resigned on the PM's request and that should be the end of the story. The resignation of the ministers became effective once they were submitted and they should be barred from performing duties as ministers. As the constitutional expert Mahmudul Islam wrote in his Constitutional Law of Bangladesh, the holders of constitutional posts and offices “have the unilateral right of resignation, effectiveness of which is not dependent on the acceptance of the resignation by any authority” (p. 477). In other words, after submitting their resignation to the PM, the minsters ceased to be ministers and any act they undertake after resignation as ministers should be illegal. They also should not be paid or receive any other privileges as minster after resignation. Such a situation not only creates a mess, it may also lead to a serious constitutional crisis.
We urge all concerned to clean up the mess they created so that our democratic system does not fall apart again and our economic achievements continue unhindered.
The writer is Secretary, SHUJAN -- Citizens for Good Governance.