Although the office of the president does not have any executive role, certain ceremonial functions attach to that office. To a lesser degree, similar functions attach to the office of the speaker, even if there is no parliament in existence. Accordingly, it is important to understand how vacancies in these two offices are to be dealt with in order to avoid any potential constitutional vacuum.
My articles published in this newspaper on August 14 and September 1 discussed how the current constitutional dispensation needs to be understood by reference to both the words written in the Constitution as well as principles and doctrines that are not written in the Constitution but yet form an integral part of our constitutional law.
These principles and doctrines enable the current government to follow the written Constitution to the fullest extent possible, and address any remaining constitutional vacuum or crisis by invoking the doctrine of necessity and the supremacy of the will of the people, who want this government to succeed.
For addressing any constitutional crisis and vacuum, reference can also be made to the broader concept of constitutionalism that confers on the government authority to carry out the objectives of the revolution.
The preeminent objective of the revolution is a peaceful transfer of power through a free and fair national election. A constitutional vacancy that can potentially impact the smooth functioning of the government and carrying out its objectives would entitle the government to take reasonable and prompt steps to resolve the matter. These would be the guiding principles for addressing any constitutional vacancy.
Given that the speaker has tendered a resignation on September 2, it may be useful to first address the implications of that resignation. As explained below, these implications will have some bearing on the matter of vacancy in the office of the president.
Although the speaker tendered resignation on September 2, formally, the offices of both the speaker and the deputy speaker became vacant when the parliament was dissolved by the president on August 6. This is the case because Article 74(2) of the Constitution provides that the speaker and the deputy speaker shall vacate their offices if they cease to be members of parliament.
However, despite vacating the office, the speaker is supposed to perform certain functions till her successor enters office. In view of the fact that currently there is no parliament in existence, the speaker does not have any role right now, except the requirement in the Third Schedule of the Constitution to administer oaths to members of the next parliament following the national election.
However, in accordance with Article 148(2A) of the Constitution, in case of unavailability of the speaker, the chief election commissioner can administer oaths to the members of the parliament. Hence, it does not seem necessary right now to fill the vacancy in the office of the speaker.
Let us now turn to the question of vacancy in the office of the president -- if it were to happen for any reason whatsoever.
According to Article 54 of the Constitution, if a vacancy occurs in the office of the president, the speaker is supposed to discharge the functions of the president. This provision scarcely addresses the current situation where a parliament has been dissolved in extraordinary circumstances.
Furthermore, it is a situation where the speaker ceased to be so due to dissolution of the parliament, but yet tendered resignation to completely dissociate herself from that office.
This situation can be interpreted as nothing short of a complete unavailability of the speaker to perform any function at all. Accordingly, this situation must be addressed by the doctrine of necessity and the revolutionary constitutionalism discussed in my earlier articles.
This will mean that if a vacancy were to occur in the office of the president, a new president, who is true to the spirit of the change, should be appointed by the current interim government. In the absence of the speaker, the chief justice can administer oaths to the new president.
This will ensure that the tasks and responsibilities given to the current government by the people are not affected due to futile controversies and a waste of time regarding a constitutional vacancy that can be well addressed in accordance with the principles which have already been applied in respect of the council of advisers.
Put simply, the new president will enter office in the same manner as the council of advisers did.
Dr Sharif Bhuiyan is a lawyer of the Supreme Court.