Attention MPs!

[This was published in Dhaka Courier on 13 November 2014]

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 10^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, accommodating and acceptable (In fact, this very article is a kind of elaboration of my write-ups ‘Attention MPs’, Dhaka Courier, 06 April 2013 and ‘Attention MPs: Case of Bangladesh, Burma Times, 07 November 2014).

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 once the Constitution is made and enforced, there, following the very Constitution, 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 although the tenure of the office is five years, this may be extended until his successor enters upon office.

Therefore, 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, which may further be extended to a period until his successor enters upon office. Logic behind such provision is that the office of the President shall never stay vacant.

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 comprehensible that the period of Parliament is five years.

From these two articles 65 and 71(3) plain implication 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 uncertainty 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 are at variance 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 2014, was or is still in a position to face the reality of this part two of the clause (1) of the article 123.

Even on account of resignation art.50 (3), 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 shall/can never under any circumstances expire before the dissolution of the Parliament by members of which he was elected.

More attention-grabbing is Article 123(2) that read: ‘In the case of a vacancy in the office of President occurring by reason of the death, resignation or removal of the President, an election to fill the vacancy shall be held within the period of ninety days after the occurrence of the vacancy’. This is well-inserted and well-explained and it is   understood from the recent practice in Bangladesh. 

Speaker of the National Parliament Abdul Hamid---after the death of President Mohammed Zillur Rahman, first President of Bangladesh under parliamentary system of government to die in office due to natural causes--- was elected President by the members of the 9^th Parliament in pursuance of the article 123(1). He assumed office on 24 April 2013 and he shall, subject to the article 123(1), continue for a period of five years in accordance with the article 50(1). Hence, if nothing happens in line with the article 123(1), his term will expire before the normal course of dissolution of the10th Parliament by members of which he was not elected. From such unambiguous standing of the Constitution, paragraph two in the article 123(1) that reads: ‘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’ stands inoperative without any shade of ambiguity.

Therefore, during Abdul Hamid’s term if anything occurs n line with article 123(1), as was the case of President Zillur Rahman, there remains no constitutional bar to hold election to the office within the next ninety days. So, on the one hand, there is no possibility of the expiry of his term before the customary dissolution of the Parliament by members of which he was elected because that very 9^th Parliament exist no more. On the other, his term will expire before the dissolution of the 10^th Parliament, which has no bearing on the article. For Bangladesh, continuance of such reality under the ongoing parliamentary system and constitutional provisions is a Hobson’s choice. It further unfurls the truth that the office of the President shall for a major period of time not remain in hand of the party in-power of the majority MPs by which the President was elected provided it is voted for a second term or more. Even if it is voted for second term or more, the president shall continue for a brief period of time to complete his stipulated term of five years. Such scene will appear undeniably when a  ruling party/alliance shall lose its majority after elections to next Parliament.

Strictly speaking from the politico-constitutional point of view, getting elected consecutively for more than one terms has not yet taken place in Bangladesh perspective, although one may be tempted to refer the cases first the so-called elections to the 6^th Parliament on 15 February 1996 through which the then ruling BNP was voted to power for a second term consecutively and second the so-called general elections to 10^th Parliament on 05 January 2014 that paved the way for AL’s going to power for a second term consecutively. In both cases, elections were held under atypical state of affairs without participation of the major opposition of the time in particular. Further, for the sake of logic and actuality if such appearance of ‘second term consecutively’ is as well recognized politically (since there is nothing wrong constitutionally), even then those make it clear that article 123(1) has nothing to do in this regard. So, from the constitutional point of view it neither carries a message of expectedness or of exquisiteness? Rather it’s a case of redundancy. 

From these standpoints, therefore, let the members of the current 10^th Parliament, both position and opposition, take this paragraph two in the clause (1) in the article 123--- 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--- into account and thus rewrite or scrape or drop this from the constitution. Attention and voice of the Speaker of the 10^thNational Parliament Dr. Shirin Sharmin Chaudhury, also the Chairperson of the executive committee of Commonwealth Parliamentary Association (CPA), and veteran parliamentarian Suranjit Sen Gupta, currently chairman of the standing committee on law and parliamentary affairs, to the matter are highly coveted for.

[Dr. Sinha M. A. Sayeed, Chairman of Leadership Studies Foundation, Member of International Political Science Association and columnist and he can be reached at sinha_sayeed611@yahoo.com, Bangladesh]