Neutral election time government: A constitutional solution

The current government wants it; the opposition wants it; the international community wants it — that all the key players in Bangladesh want a free and fair election towards the end of this year or the beginning of next year is surely not a controversial proposition. They are publicly saying it: the prime minister, her foreign minister, the main opposition party, the United Nations, US diplomats, the Brits, the Europeans.

And, of course, the citizens — whose prerogative it is to walk into the voting booth to elect or re-elect their representatives in the parliament every five years — are eagerly waiting for it.

Despite the consensus, there remains a political crisis which stems from two conflicting positions about how to conduct the election in a credible (as in recognised as free and fair per international standard) and inclusive (as in not boycotted by major parties) manner within the remit of the constitution.

The Bangladesh Nationalist Party (BNP) and other major opposition parties do not find the current government credible enough to warrant their participation in an election under its management, as they fear a repeat of the notorious December 30th election of 2018.

The current Awami League (AL) government, on the other hand, does not want a caretaker government, as it fears a repeat of the military-led 1/11 regime of 2007.

Both are justified fears based on ample merit, and shared by ordinary citizens of the country. And these two positions, despite the public virulence of their proponents, are not necessarily irreconcilable.

That no partisan government in Bangladesh, starting from 1973 and onwards, conducted a free and fair national election is an objective, historical fact. Insomuch that is exactly what led AL to demand the institution of a caretaker government back in 1995-6, when it was in the opposition. Surely the party does not want free and fair elections only when it is in the opposition.

And surely BNP does not want a repeat of 1/11, a military-led regime that subjected its leaders and activists to brutal persecution, including the torture of its current acting chairperson in army custody.

On this question, we dare say, BNP and AL are pretty much on the same page. Based on this commonality, one is tempted to find a solution to the current political crisis in the pages of the constitution of Bangladesh.

BNP and most other opposition parties want a neutral election time government to conduct a free, fair and credible election, without the current prime minister remaining in her post.

AL claims that this would be unconstitutional. Senior AL figures say that any solution to the current crisis must come from the existing provisions of the constitution — “look for a solution in the constitution”, says the AL general secretary.

That is exactly what we are proposing in this article — a constitutional, albeit heretofore unconventional, formula for a neutral election time government (ETG) that could satisfy BNP demands for a credible election and allay AL fears of a rogue regime.

Reading the constitution

Let us go through a close textual reading of the constitution of Bangladesh that gives us four key points.

i. The executive works in the name of the president, not the prime minister.

The post of the president in Bangladesh is largely titular. However, it is the president in whose name all the executive actions of the executive branch are taken. “All executive actions of the government shall be expressed to be taken in the name of the president,” reads Article 55.4 of the constitution.

In contrast, Article 55.2, which sets out the executive power vested in the prime minister, stipulates: “The executive power of the republic shall, in accordance with this constitution, be exercised by or on the authority of the prime minister.”

Read together, these two articles confirm that while the prime minister is the de jure  head of the executive, the president is the de jure head of the state.

A further confirmation of the superior functional position of the president can be found in Article 54, which sets out how the speaker of the parliament will act as the president in his absence or if the post of the president becomes vacant for some reason (which may include the president’s resignation under Article 50.3): “If a vacancy occurs in the office of president or if the president is unable to discharge the functions of his office on account of absence, illness or any other cause the speaker shall discharge those functions until a president is elected or until the president resumes the functions of his office, as the case may be.”

The third schedule of the constitution (oaths and affirmations), under which the speaker takes oath of her office, also bolsters this arrangement as she swears to faithfully discharge the duties of the president whenever “called upon to do so”.  

We find no equivalent constitutional provision or arrangement for the post of the prime minister, in the event she is unable to discharge her duties because of absence, illness or any other cause.

In other words, the constitution of Bangladesh requires that the office of the president must always remain occupied, while no such explicit constitutional requirement exists for the office of the prime minister.

ii. Having a prime minister is not a constitutional requirement for an election period government.

As stipulated in Article 56.1 of the constitution, “there shall be a prime minister” of Bangladesh, while Article 55.1 stipulates that there shall be a cabinet with the prime minister “at its head”. And, the president must act on the prime minister’s advice save a few exceptions, a requirement enunciated in Article 48.3: “In the exercise of all his functions [...] the president shall act in accordance with the advice of the prime minister…”

According to Article 56.3, the president of the republic must appoint a prime minister who must be a member of parliament commanding the support of the majority of the members of parliament. However, this article (or any other article) imposes no time frame on the president for appointing a new prime minister, in the event the office of the prime minister falls vacant.

There is no constitutional bar against the president taking days or even months to appoint a prime minister. In the event a rogue president refuses to appoint a prime minister, the parliament can of course impeach him under the provisions set out in Article 52.

In other words, by constitutional design, Bangladesh will have a prime minister most of the time but not necessarily all the time. On the other hand, we reiterate, the republic will have a president all the time.

One of the times the country can very well go without a prime minister is during the election period between the dissolution of the parliament and the forming of a new government through a new election.

According to Article 123.3 of the constitution, this election period is set at a maximum of 90 days.

There is no constitutional requirement nor any stipulation that the president must, shall or will appoint a new prime minister within election period (90 days) if the office of the prime minister falls vacant for any reason including but not limited to her resignation (under Article 57.1), incapacitation or death. We must note the strictly hypothetical nature of the preceding sentence and underline that we wish the current prime minister of Bangladesh good health and a long life.

Article 57.3 of the constitution reads: “Nothing in this article shall disqualify prime minister for holding office until his successor has entered upon office.” But this article (or any other article) imposes no requirement on the outgoing prime minister to continue holding the office until her successor has been appointed by the president. It also does not address the possibility that the outgoing prime minister may be unwilling or unable (due to incapacitation etc.) to occupy the office. There is also no constitutional requirement on the president that he asks the outgoing prime minister to continue holding office until her successor has been found during the election period.

iii. Ministers, including non-elected technocrat ministers, shall continue to hold their offices even if the prime minister resigns right before or during the election period.

If the office of the prime minister falls vacant, there is a constitutional requirement that the members of her cabinet (ministers, ministers of state, and deputy ministers — including all technocrat ministers) must continue in their respective offices until their successors have been appointed.

Article 58.4 of the constitution is very clear on this: “If the prime minister resigns from or ceases to hold office each of the other ministers shall be deemed also to have resigned from office but shall, subject to the provisions of this chapter, continue to hold office until his successor has entered upon office.”

The ministers who shall continue to hold office include all the non-elected technocrat ministers of the cabinet who have been appointed by the outgoing prime minister according to Article 56.2 of the constitution. The article explicitly allows “not more than one tenth of [the ministers in the cabinet]” to be “chosen from among persons qualified for election as members of parliament.”

In other words, in a cabinet of 10 ministers, 1 minister can be a non-elected technocrat. And, if the prime minister resigns right before or during the election period, this minister (along with other ministers) shall continue holding his/her office, until a new cabinet is formed after a new election.

To have one or more non-elected technocrat ministers in a cabinet is accepted as constitutional and legal by all major political parties in Bangladesh including AL and BNP. In fact, the current AL government has a number of non-elected technocrat ministers in the cabinet.  

iv. Constitutional scope for an “election minister” and an election period cabinet without a prime minister.

As we have seen in Article 55.2 of the constitution, the executive power of the republic is exercised by the prime minister or on her authority. It is on her advice the president appoints other members of her cabinet. She is also responsible for designating different ministerial portfolios to different members of the cabinet.

Nothing in the constitution bars or precludes the prime minister from appointing and delegating duties to a non-elected technocrat minister — or an “election minister” — with the principal responsibility of assisting the election commission in conducting a free, fair, credible and participatory election, according to Article 126 of the constitution.

This “election minister” may be assigned all the key portfolios necessary for this specific assignment. The portfolios may include but are not limited to defence, public administration, and home affairs.

Nothing in the constitution bars or precludes the prime minister from forming a new election period cabinet composed of members of parliament from all parliamentary parties based on consensus of all major political parties, including parties that are now outside the parliament.

Nothing in the constitution bars or precludes the prime minister from resigning from her post right before the 90 days election period, and choosing not to occupy the office of the prime minister until a new prime minister enters the office. And, if the office of the prime minister becomes vacant due to such a resignation, the election minister and the election period cabinet members shall continue to occupy their respective offices until a new cabinet is formed after the election.

Need for a national dialogue

A neutral election time government (ETG) without a prime minister and with a technocrat “election minister” is constitutionally possible but in order to make that viable a national dialogue between all the major political parties must happen. Given the palpable distrust and contempt between the parties, Bangladesh’s international partners can play a crucial role here by facilitating such a dialogue, based on a declared agenda and roadmap.

Adoption of the neutral ETG model by all the major political parties (including, most crucially, AL and BNP) would require consensus through dialogue on six key issues or items:

1. consensus about a new neutral, non-partisan president acceptable to all, who will be elected by the current parliament;

2. consensus about a candidate for the position of the election minister, who the president will appoint on the advice of the current prime minister;

3. consensus about the composition of an election period cabinet, that will carry out only routine executive duties;

4. consensus about a new election commission, who the president shall appoint;

5. consensus about the exact date the current parliament will be dissolved before election;

6. and, consensus about the exact date of resignation by the current prime minister.

The new president, in this scheme, would not only be the custodian of the ETG model but also the guarantor of any eventual “safe exit” agreement reached between the major parties, which could also be the seventh item in the agenda for national dialogue.

What do constitutional experts say?

We shared a draft version of this article (containing our reading of the constitution and the proposed agenda for a national dialogue) with three preeminent experts on the constitution of Bangladesh: Shahdeen Malik, Asif Nazrul, and Ridwanul Hoque.

In their comments, all of them confirmed the validity of our reading.

“This is more a political reading than a legal reading in light of the needs of the time,” noted Hoque. “The constitution is a political document and there is nothing wrong in having a political reading [or] interpretation of it.”

“The technical analysis of the powers of the prime minister and the issue of non-obligatory nature of the post of [the prime minister] may be correct insofar as the relevant textual provision of the constitution,” noted Malik.

The experts then addressed the question of the vacuum in the absence of a prime minister in some detail.

Nazrul noted that “there are constitutional conventions which require immediate appointment” of a prime minister, if the post becomes vacant.

“The spirit of the constitution and conventional practices in parliamentary democracies would suggest that the office of the chief executive of a state cannot remain vacant for a substantial period of time,” said Malik. “Recently, the offices of the head of executive remained vacant for long periods in Israel and Lebanon. These vacancies have contributed to chaos in the running of those countries.”

Hoque proposed a possible solution to such a chaotic vacuum, “After the resignation as well as the dissolution of the parliament, the ‘election minister’ (even if a technocrat) can be appointed as caretaker or interim or acting [prime minister]. If the parliament is dissolved, Article 56.3 [of the constitution] would not be breached because parliament is dissolved and this is not the ‘prime minister’ of Bangladesh under Article 56.3 but rather an acting [prime minister] appointed within the constitution to deal with a novel situation (outgoing prime minister [chooses not to] continue until her successor is elected). By this, the cabinet also gets a head/leader. If the system has some discrepancies, that can be rectified by the next parliament.”

Here, Nazrul underscored the crucial role of the outgoing prime minister, “If the [prime minister] wishes to continue, s/he can. [...] If the president does not want her/him to continue, the call for impeachment [of the president] may come — the law is subject to interpretation here — [which] the supreme court may be called upon to decide under its advisory jurisdiction.”

In other words, formation of a neutral election time government is largely dependent on the consent of the outgoing prime minister. A free and fair election in Bangladesh is contingent on her sincere efforts in facilitating a neutral election time government. If she wants to stay in office, nothing in the constitution prevents her from doing so. But if she is willing to resign after delegating routine executive duties to an election minister, the constitution in its current form will not be an impediment. The onus is on her.●

Tasneem Khalil, Editor-in-Chief, Netra News.