A Constitutional Dilemma: How to Resolve?

March 1, 2021 ksra 0 Comments

CONSTITUTIONAL ANALYSISKhan Khalid Adnan

The Constitution (Fifteenth Amendment) Act 2011 has altogether omitted all the provisions regarding the Non-Party Care-Taker Government as inserted by the Constitution (Thirteenth Amendment) Act 1996. The position now remains that the present Constitution does not have any provision regarding any ‘special’ type of government that will perform its executive functions during the time for holding elections. Though the incumbent government formed a new poll-time interim cabinet without the main opposition, experts expressed doubt about the solution of the current political impasse. However this write up focuses on the controversies about the time for holding election. It can be noted that the time for holding general election had been very specific under the 13th Amendment whereby the Care-Taker government had to take on the executive power on dissolution of Parliament upon expiry of its term and the general election was to be held within 90 days of such dissolution. However, under the present Constitution, Art 123(3) states: “A general election of the members of Parliament shall be held –
(a) in the case of a dissolution by reason of the expiration of its term, within the period of ninety days preceding such dissolution; and
(b) in the case of a dissolution otherwise than by reason of such expiration, within ninety days after such dissolution.”
Therefore, Art 123(3)(a) clearly permits holding of general election even without dissolving Parliament. Article 72(3) states 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. Therefore, the upcoming general election can very well be held, following the Constitution, within 90 days prior to 25 January 2013, even in the absence of dissolution of Parliament. Again, by Art 72(2), Parliament shall be summoned to meet within 30 days after the declaration of the results of polling at any general election of members of Parliament. Art 123(3)(a) certainly leaves the scope for holding election and declaring results more than 30 days before the dissolution of Parliament. In that case there is a scope in law that the newly elected Parliament may have to meet as per the mandatory provision of Art 72(2) even before the dissolution of Parliament which is definitely in conflict with the definition of “session” as provided under Art 152 whereby “session” in relation to Parliament, means the sittings of Parliament commencing when it first meets after the commencement of this Constitution or after a prorogation or dissolution of Parliament and terminating when Parliament is prorogued or dissolved. Following this definition, a newly elected Parliament can only meet after dissolution of the earlier one.
The only way in which this anomaly can be resolved is that the general election shall have to be held and the results of the same shall have to be declared at a time from when 30 days would not expire before the dissolution of Parliament upon expiry of its terms because otherwise a newly elected Parliament will have to be summoned to meet before the earlier Parliament is not yet dissolved which is not certainly legally possible. Therefore, the election period expanding over a period of 90 days preceding dissolution may obviously create a serious contradiction with the Constitutional obligation of the President to summon the new Parliament within 30 days after the declaration of election results.
It is vital to consider, in this regard, whether or not the holding of election within 90 days before dissolution of Parliament is mandatory or directory. An analysis of Art 123 prior to and after the 15th Amendment can help us get an insight of this issue. The present Art 123(3)(a) is in direct contradiction with the earlier Art 123(3). Even though both the earlier and latter provisions appear to make the holding of election within 90 days mandatory, the event from which such period is to be counted is completely different under the respective provisions. The earlier Art 123(3) provides the starting point (i.e. dissolution of Parliament) for the counting of 90 days’ period whereas the present Art 123(3)(a) specifies the dissolution of Parliament being the ending point of the stipulated period of 90 days. Interestingly enough it is a counting to be started from the backward (which is specific) towards ‘something’ which is not at all constitutionally defined. The 15th Amendment in this respect is therefore not at all clear and does not say at all why the period of 90 days as mentioned in Art 123(3)(a) is important, what does that period signify and most importantly, from where does the period start and how does it differ from the other periods of the existing government. A period, to me, is something which has a starting and finishing points and the interim time within those points is the period. How can Art 123(3)(a) of the Constitution contain the term ‘period of ninety days’ without even stating from when the period starts?
Briefly I would like to point out that there have been some controversies in the related judgments regarding the mandatory nature of the 90 days’ election period under the law prior to the 15th Amendment. After some controversies, in Sultana Kamal v Bangladesh, the High Court Division held that the time limit of 90 days for holding of election under the earlier Art 123(3) was mandatory. In this light, it can be argued that the prescribed time limit of 90 days under the present law (Art 123(3)(a)) would also be deemed to be mandatory. However, the question that I have already put forward would certainly cast doubt on the practical implication of such limitation, both legally and politically.
I find direct conflict between Art 72(2) and Art 123(3)(a) because President cannot summon the newly elected Parliament within 30 days of the declaration of election results if the existing Parliament is not yet dissolved on the expiry of 5 years. However, one can argue that the election can be held at a time within the period of 90 days where the expiry of 30 days under Art 72(2) would occur after Parliament is dissolved following Art 72(3), therefore allowing the President to perform his Constitutional obligation. Then again my question is if that is the case then why the term of 90 days is specified in Art 123(3)(a). If there is no scope for declaring results of polling at election before 30 days of dissolution of Parliament to avoid Constitutional crisis, why the number ‘ninety’ has been used leaving scope to create such crisis? Can a newly elected Parliament be summoned before the earlier Parliament is not yet dissolved? If that is not possible, then why Art 123(3)(a) is capable of giving rise to such possibility? As Art 72(2) is mandatory and as in the light of the case law, the time prescribed under Art 123(3)(a) is arguably mandatory, then what do we do if there is scope for collision between these two mandatory requirements? Considering the fact that we have already entered within the 90 days’ period preceding the upcoming dissolution, it is high time to clarify the issues raised hereinabove.

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