Is 90 days written in stone?
Clause (4) of the same article deals with the time limitation for by-elections. The clause enjoins that by-election for the vacant seat of the parliament has also to be completed within 90 days after the seat has fallen vacant.
This clause has been qualified by a proviso which allows the CEC to extend the time for holding by-election for another 90 days only on account of "an act of God." By-election, according to constitutional provision, cannot be deferred for any reason other than "an act of God."
For all latest news, follow The Daily Star's Google News channel. Evidence shows that in the last few years, we had at least three cases where by-elections were not held within 90 days. "Act of God" was not cited as the reason for not maintaining the time limit in any of the three cases: (i) election in Dhaka-10 consistency, due to vacation of seat by major Abdul Mannan (Rtd), (ii) Comilla-8 constituency due to demise of Col. Akbar Hossain (Rtd), and (iii) Dinajpur-3 constituency due to demise of Mrs. Khurshid Jahan Huque.
Besides these, election in Bhola-1 constituency in the 7th parliament was not completed, such that the constituency remained unrepresented throughout the parliament. The parliament consisted of 299 MPs (plus 30 women MPs in the reserved seats) instead of the constitutionally mandated 300 MPs (Article 65). This was clearly a violation of the constitutional provision.
The above evidence perspicuously demonstrates that constitutional enjoinments regarding time constraint or composition of the parliament were not adhered to on more than one occasion. Apparently this did not trigger any constitutional crisis. The revealed reality points out that the time constraint is an injunction which is neither precatory nor rigidly inviolable. It is apt to be dominated by the ground reality.
Non adherence because of court's order or some other insurmountable obstacle does not invoke any drastic consequence for the parties involved in the process. In fact, so far no person has been brought to task for ignoring constitutional obligations without compelling reasons.
Such inherent craters and crevasses bring into sharp relief the weakness of the Constitution of Bangladesh. Consequences of violating the provisions of the Constitution are conspicuously absent in the whole shebang.
This may explain why successive governments have ignored or violated with impunity the constitutional provisions regarding Ombudsman (Article 77), separation of judiciary (Article 22), formation of elected local governments (Article 59), and placing of all international agreements in the parliament through the president (Article 145 A).
The upshot of the discussion is that we must make every effort to hold the election within 90 days as prescribed in the Constitution. No intentional dilly-dallying in this respect should be condoned. Constitutional enjoinment should never be taken lightly.
The Constitution is not a religious book, it is not however a pocket thesaurus either. It has to be respected and followed to the best of our ability. Despite our best efforts, if we find it impossible to follow the constitutional provisions in letter because of ground reality, we should not be unnerved so long we are determined to follow the spirit strictly.
The spirit is that we must hold an acceptable general election at the earliest and must not betray any fiendish tendency to delay the process. In order to follow the spirit, the acceptable standard of the elections must be maintained at any cost, even if it implies release of the time constraint.
The way out from any unavoidable quagmire is provided in Article 106 of the Constitution. The Supreme Court as the apex interpreter and protector of the Constitution may proffer its supreme ruling about how to overcome the impasse. The nation will abide by the ruling without question. It is not a unique phenomenon. Such ruling has been delivered in many countries, including ours.
One point needs to be clarified at this stage. The time constraint for holding elections within 90 days applies to the Election Commission; it is not in any way relevant for the tenure of the caretaker government. The tenure of the caretaker government extends up to handing over power to the next elected government, marked by the oath-taking ceremony.
The CTG may remain in power for a few more days after the elections if the elections result in a hung parliament or if the formation of the new government is delayed for any other reason. The responsibility of making all efforts to hold the elections within the prescribed time limit lies with the Election Commission; the CTG has to provide all "possible" aid to the Election Commission for holding "peaceful, fair and impartial" election for constituting the national assembly.
It is therefore incumbent for the EC to work in close co-operation with the CTG to hold fair and impartial elections within the time range, as prescribed by the Constitution or the extended time as ruled by the appropriate court.