A number of experts on the constitution, some of whom have experience of conducting elections and running the public administration, have ruled out BNP Chairperson Khaleda Zia’s claim that the present government would be illegal after October 27.
Talking with the Dhaka Tribune on Friday, they said Khaleda’s statement was “merely a political speech,” which had no legal or constitutional base.
In her address at a public rally at the Suhrawardy Udyan, the opposition leader on Friday urged officials in the administration and different departments not to carry out the present government’s orders and directives after tomorrow.
“This is an irresponsible remark,” said senior legal professional barrister Rafiqul Huq. “Her claim is not correct from the point of view of the constitution.
“If she claims so, the opposition party will also become illegal then.”
Former adviser to a caretaker government Akbar Ali Khan, who was a top bureaucrat, also termed Khaleda’s statement “political” and declined to comment on it.
“If there is any constitutional problem regarding the issue, they [the opposition] could have gone to court,” said Akbar Ali, who had served as the cabinet secretary at the end of his long career in the administration.
A leading law professional, Dr Shahdeen Malik, said: “I am sure she [Khaleda] is aware that technically hers is not a correct position.”
He said: “The government will not become illegal or unconstitutional from October 27. Hence it [Khaleda’s remark] is more of a political rhetoric in line with exaggerated claims or assertions or demand in our political discourse.”
Barrister Rafiqul Huq said the constitution clearly stated that the prime minister would continue her duty until the new prime minister took charge. The present prime minister could even hold her office until a newly elected party formed the government as per article 57(3) of the constitution.
He said the present government, the prime minister and her cabinet could continue even after January 24 if the new government did not take charge by then.
Article 58(4) says 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 they will continue to hold office until their successor has entered upon office.
“If this government cannot run the country, who will do that? Will the bureaucrats run the country?” barrister Rafiqul raised the question.
Brig Gen (retd) M Shakhawat Hossain, who has the experience in conducting the 2008 national elections as a member of the Election Commission, also said: “Constitutionally, it cannot be said that this government will be illegal from October 27. Constitutionally, the present government will remain in power until January 24 [next year].”
Shakhawat, however, pointed out a couple of “grey areas” in the constitutional provisions.
“It has not been stated [in the constitution] from when we will consider this government as an election-time government,” he said, adding: “Will we consider this from October 27 or from the day of announcement of the election schedule?”
He said the constitution also did not mention anything about the “scope of work” and “functional jurisdiction” of the government during the 90 days from October 27 to January 24 the period for holding the next national election.
“These 90 days in principle belong to the Election Commission,” said the former election commissioner. “For these 90 days the government is only to carry out routine work, the work for creating a perfect electoral atmosphere and providing support to the Election Commission for holding the election.”
“From October 27, the present government should be considered as an election-time government,” said Dr Shahdeen Malik. “And they should not do anything, such as inauguration of development projects, bridges, hospitals etc, which may tend to influence the upcoming national election or its results.”
In reply to a question, Shakhawat Hossain said usually the EC considered the whole process “from the date of declaration of the election schedule to the publication of the gazette of the election results” as the election time.
He said the EC could announce the schedule any day after October 27, but it required at least 45 to 50 days before the polling day to complete their job of holding the polls.
In cases of any unforeseen reasons, such as severe natural disaster, the EC might need to re-adjust the polling date.
Considering all these factors, it was better to fix the voting date 10-15 days before January 24, Shakhawat Hossain said, terming it his personal view.