Attention MPs!

[This was published in Dhaka Courier on 06 April 2013]

Members of Parliament being the highest law-makers of the land concerned should take all the time adequate precautions while making a law in the manner of article, clause or sub-clause so that nothing is inserted in the Constitution, which is inappropriate making no sense of application in its entirety at all. But, surprisingly enough, such an episode has taken place in the concluding and paragraph two of the clause (1) in the Article 123 of the Constitution of Bangladesh since it speaks in a different way about election to the office of President under the circumstances of utopian scenery. Neither idealistically nor realistically has this very sub-clause been carrying any credence to be added to clause (1) of Article 123. Why or how it came to be incorporated that’s now not the concern. What is imperative at this instant for the members of the current 9^th Parliament is to look into the matter acutely and take the right initiative to chafe it immediately, if the interpretations as follows stand convincing, accommodative and acceptable.

Since the said paragraph is concerned with election to the office of President of Bangladesh under a peculiar circumstances, that’s why, before going into the deep of the texts of it, it is better and wiser to take resort to the languages of the articles, clauses and sub-clauses in the Constitution of Bangladesh that deal with the tenure of President and Parliament respectively.

Article 48(1) reads: "There shall be a President of Bangladesh who shall be elected by members of Parliament in accordance with law." It means there must be a Parliament to elect a President. Therefore, it’s a constitutional incorporation that a parliament shall be born first and the president shall be the creation of such parliament; and

Article 50(1) notes that ‘Subject to the provisions of this Constitution, the President shall hold the office for a period of five years from the date on which he enters upon his office’;

Provided notwithstanding the expiration of his term the President shall continue to hold office until his successor enters upon office’. This part makes it clear that the tenure of his office is five years.

From these two articles 48(1) and 50(1) unambiguous message is --------------------------------------

That there shall be a President of Bangladesh who shall be elected by members of Parliament for a period of five years;

Then Article 65 states that ‘There shall be a Parliament for Bangladesh (to be known as the House of the Nation) in which, subject to the provisions of this Constitution, shall be vested the legislative powers of the Republic….’ and

Article 71(3) says that ‘Unless sooner dissolved by the President, Parliament shall stand dissolved on the expiration of the period of five years from the date of its first meeting’. This clause makes it clear that the period of Parliament is five years.

From these two articles 65 and 71(3) plain meaning is --------------------------------------

That there shall be a Parliament for Bangladesh for a period of five years (unless sooner dissolved by the President);

Therefore, durations of both Parliament and President are of equal length from the point of view of longevity, but they are not on equal standing from the standpoint of getting life (time) as one (Parliament) comes to light first and the other (President) is then elected by it (such Parliament); It is a common practice that a person is voted to the office of President after a month or more during or after the first sitting of Parliament and his tenure of five years is counted from the very day of his entering upon office. This carries the certainty that a president after having been elected to the office can never go ahead of the scheduled time of expiry of the Parliament by members of which he was elected.

Ironically enough, Article 123(1) reads that ‘In case of a vacancy in the office of president occurring by reason of the expiration of his term of office an election to fill the vacancy shall be held within ninety days prior to the date of expiration of the term.

Provided that if the term expires before the dissolution of the Parliament by members of which he was elected the election to fill the vacancy shall not be held until after the next general election of members, but shall be held within thirty days after the first sitting of Parliament following such general election’.

There is no ambiguity here in the paragraph one but that is not factual in case of the paragraph two. Because if the durations of parliament and president are of unequal span, say one is for five years while the other is for four years then it is well understood that there is a definite signal for the expiry of the term of president before expiry of the term of parliament by members of which he was elected and In that case this very paragraph two is applicable perfectly.

But if the duration of parliament and president are of equal length of five years in pursuance of articles 72(3) and 50(1) and at the same time they differ from the point of view of coming to life, which means ‘when to start’ in that case the insertion of this paragraph two in the clause (1) of the article 123 is indeed not pertinent. Because remains there no possibility for an expiry of the term of president before the expiry of the term of parliament by the members of which he was elected. It is on record that not a single President, starting from the introduction of parliamentary system of government in 1972-1975 for the first time and then again from 1991 down to this date of 2013, was or still is in a position to face, of course, going ahead of the duration of parliament., the reality of this part two of the clause (1) of the article 123.

Even on account of resignation (article 49(3), illness, incapacity (art.53), impeachment (art.52) or death [art.123 (2) in part] of the President there shall be an election to fill the vacancy (meaning a general election for a period of five year term in view of the fact that there is no indication of bye-election) and this has to be done within ninety days after such occurrence [(art. 123(2)]. Once more it’s a pointed indication that the tenure of President never under any circumstances can expire before the dissolution of the Parliament by members of which he was elected.

From these standpoints, therefore, let the members of Parliament, both position and opposition, take this paragraph two in the clause (1) in the article 123 into account and thus scrape or drop this from the constitution.