Next Parliamentary Election in Bangladesh: A few Legal Issues need to be resolved

Next Parliamentary Election in Bangladesh: A few Legal Issues need to be resolved

Bangladesh elects 300 members of parliament from single member constituencies for a term of five years using the first-past-the post voting system and the candidate receiving most votes is elected from a constituency. The current ninth parliament held its first session on 25th January, 2009 (elections were held on 29th December 2008).

In all parliamentary forms of government, the dissolution of existing parliament is the first signal of calling a new parliamentary election.

In Australia, New Zealand, Canada and Britain, parliament is dissolved first before the new parliamentary election. The governments take the form of “carte-taker mode” and no policy decisions are taken without consulting the opposition in parliament.

In India, the same practice is followed. The elections of Lok Sabha (directly elected Lower House of parliament) are held after the dissolution of the parliament. The prerogative of announcing the dates and conducting the elections, however, belongs to the Election Commission.

Bangladesh is out of step of other parliamentary democracies because the next parliamentary election is to be held without the dissolution of the parliament

The constitution provides parliament needs not to be dissolved before the next parliamentary election. It states that a general election of the members of parliament shall be held “by reason of the expiration of the term within the 90 days preceding such dissolution” (Article 123 (3a) . This provision was adopted by parliament on 30th June 2011 as the Fifteenth amendment of the constitution.

The provision is not only unique but also puts practical difficulties on the ground and some of them deserve mention as follows:

First, since the parliament is not dissolved, the MPs will hold their office, receive salaries and other privileges, although during that period, MPs will not sit as members of parliament as there will not be any session of parliament.

However, by virtue of being a MP, he/she will continue to hold an influence on people and officials in the area of the constituency. Therefore such situation will not create a level-playing field for other contestants for a seat of MP. The scenario is unequal among contestants and is not in keeping with the tradition and norms of parliamentary democracy. The inequality among contestants may also contravene Article 19 read with Article 27 of the constitution which affirms equality of all citizens as one of the fundamental rights.

Second, a MP is disqualified from contesting the election because he holds the office of profit (Article 66 of the Constitution), although the provision exempted the President, Prime Minister, the Speaker, the Deputy Speaker, a Minister, Minister of State or Deputy Minister from holding the office of profit but not a MP.

Third, it is reported that both major parties are likely to nominate new candidates in many constituencies at the next election. An existing MP who has not been nominated as the candidate of the party will be a disgruntled person and in such situation he/she may have three options: (a) to support the party’s candidate or (b) contest as an independent candidate or (c) work discreetly against the party’s candidate for the person’s defeat.

From the above discourse, dissolution of current parliament by amending Article 123 (3) of the constitution is imperative before the parliamentary election is held. A few MPs from the ruling grand coalition reportedly called for amendment of this provision in the parliament.

The Election Commission of the Constitution has been entrusted to hold elections of members of parliament (Article 119). One of the keys to holding a credible and inclusive election is the procedural guarantees of a fair and free process and the need of the Election Commission to establish public confidence in the election process and election administration

One can very strongly argue that Article 66 of the Constitution is in conflict with Article 123 (3). Accordingly, it is suggested that the Election Commission may point out to the government that without dissolution of the parliament, MPs will be disqualified to contest the election under Article 66 of the constitution. And unless it is rectified, the validity of the election of MPs will be challenged which will be first disposed of by the Election Commission and subsequently before the higher judiciary.

To contest a parliamentary election requires huge money and one sign is the presence of significant proportion of business people/industrialists in the parliament over the years, rather than that of professional class. Furthermore, the influence of “black money” and “muscle power” during election campaign has a damaging effect in electoral results and TIB on many occasions have described how the two factors distort election outcomes.

The politics of confrontation between the ruling party and the opposition party in the parliament including the boycotting the sessions of the parliament has become “the culture of politics” to their detrimental effect. It has retarded the development of healthy democratic polity in the country. It is important for them to demonstrate tolerance and respect for each other to ensure an environment conducive to holding the next parliamentary election.

By and large, Bangladesh is linguistically and ethnically a homogenous country and this is a great inherent strength for unity among people. However the civil society including almost all members of professional class have over the years become so divided along party- lines that it is very difficult to ascertain an objective assessment of an event in the country.

It cannot be denied that there is a pressure from within and outside to hold free, credible and inclusive parliamentary election and in politics nothing is impossible and ruled out and in that context, major political parties will hopefully come to an understanding in holding a credible, fair and inclusive next parliamentary election to fulfill the wishes and aspirations of the people in the country. I am confident that our political leaders will not and must not fail the people. After all, the constitution asserts that all powers belong to people (Article 7).

By Barrister Harun ur Rashid
Former Bangladesh Ambassador to the UN, Geneva.

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