**8Barrister Amirul Islam, Senior Advocate of the Supreme Court, speaks to Isaac Robinson about the present political impasse, it's political and constitutional implications and a probable way out.***

The Daily Star (DS) : The pur pose of election in democracy is not onlu to elect a govern ment but also to give an oppor tunlty to the people to choost from the competing policies o different political parties'. From that point of view car the present election be callee an election at all? ■

Barrister Amirul Islam (Al) : It Is very true that the purpose of election in a democracy Is not merely to elect a group ol people to power but is primarily to provide an opportunity for the people to exercise the choice and to ensure their effective participation thereby ir the affairs of the Republic through their elected representatives . In order to understand the role of election In the context of our Constitutioh reference may be made to Article 7 and 11 of the Constitution.

Under Article 7 of the Constitution "All powers in the Republic belong to the people, and their exercise on behalf ol the people shall be effected only under, and by the authority of. this Constitution."

The Article 11 further reenforces by proclaiming that The Republic shall be a democracy in which effective participation by the people through their elected representatives' in aclpiinistra-HQU.at all levels shall be ensured.

In order that the people can effectively participate in the running of the affair of the government and in the decision making process, the election has to play the key role. Since people as a whole can't act in the day to day running of the affairs of the republic, they need to act through their agents namely the elected representative. It is therefore fundamental that process through which their representatives are chosen must ensure that the election could be an effective vehicle to reflect the true and correct will of the people. The main object of the election under the constitutional context can be summarized as follows:

a) To facilitate popular participation in public affairs In order to strengthen empowerment of people.

b) To effect change in the policy through the electoral verdict.

c) To ensure accountability of the government to the people through the parliament.

d) To effect a periodical audit on the political power and i^ exercise.

e) Ultimate exercise of sovereign power and authority of the people through its chosen representative.

0 To be able to make choice In a multi-party system imply-a thereby that there must

t a condition and environment in which all the parties can feel free to participate — so that electorates are not deprived of choice.

g) Provide for orderly succession in government by the peaceful transfer of power.

Exercise of the 15 February by rubber stamping an election return on an inflated number of votes having been secured as claimed, the election has not only failed to perform Its functions but It has further eroded and destroyed the credibility of the electoral system in our

country. not to talk about the Election Commission or of the party government in power. There are instances when no election has at all taken place in most of the centres causing failure of election, yet the return has been filed and result gazetted- If the proper account is taken, it will reveal that no poll has taken place in majority of the centers in the country. Yet results have been declared on the basis of some in-llated stuffed votes in

DS : It is felt by many that 90 per cent people abstained from voting . What would be the legal validity of the government formed in pursuant to the election?

AI : The government which would claim to continue and or succeed on the basis of such a farcical election In which 90 per cent people abstained from voting would not have the legal, political or moral legitimacy to run the country, This will not be a government by consent. The government thereby losed its efficacy in the absence of the consent. It will, be a rule merely by force. DS : Under the Constitution all powers in the Republic belong to the people ana that Is exercised by the elected represent tatives of the people. Do you think that the new government. which does not represent a vast majority of people, has the right to exercise the power on behalf of the people?

AI : The present government having failed to represent the vast majority of people has also lost its right to exercise the power on behalf of the people.'Such government and functioning thereof would be violative of the main theme of the Constitution. It is like acting under a false pretext on the basis of a false power of attorney which is not executed by the actual author in whose name the power of attorney is claimed as to be exercised.

DS ; What would be the power of the people when they feel that the government is not entrusted to exercise sovereign power on behalf of the people?

Al : The power and the object of the people is to form a government of its own choice. When this right is denied, it is bound to bring anarchy and violence in the society. Bangladesh itself was born because - the people were dented to form its own government and make and work its own Constitution. In 1971 while (he people rose against the occupation* army. the military regime also held a so-called election in 1971 to elect representatives in the seats, shown as vacant, of all those menibers who participated in the liberation war. Like the present February election the people in 1971 also didn't nave to come to the polling station for vote. The people chosen by the regime known as collaborators were declared elected. Those who were then elected failed to represent people, nor could become legal representatives or authority. Soon they perished in history as collaborators.

Power of the people need to be exercised through their collective will and through the Ktlcal pursuits. The history proven again and again that power of the people canrr't be

ignored or denied nor the truth be suppressed by falsehood.

DS ; What can be done to solve the present crisis? Do you think that the President has power to take over executive authority of the state and conduct election." as claimed by some of the oppositions?

AI -: In order to solve the present crisis, resort must be taken to constitutional mechanism need to be resorted to.

It is unfortunate that the holder of constitutional offices have become the violators of the Constitution. The Chief Election Commissioner for instance is expected uqder the Constitution to hold an election and not to hold a farce or a fraud. But like that election in 1971 during the liberation struggle held by justice Sattar and like the other similar election held to legitimise the regimes of the usurpers, this Election Commission now headed by Justice Sadeque is about to rubber stamp yet another farcical exercise thereby committing fraud on the election and on the Constitution. Had thia commission had minimum respect for the Constitution and minimal understanding of the role of the election It should have by now cancelled the entire election and should have requested the President to refer the matter to the Appellate Division of the Supreme Court to seek an institutional advice which is possible to do under Article 106 of the Constitution. I think that all the questions as have been raised are questions of law and of the Constitution and of great public importance. They cotild easily seek institutional and constitutional intervention in form of advise and direction under Article 106 as to what the President or the Election Commission could do in order to hold a free and fair election. But before that can be done it is necessary to have, a minimum honesty of all concerned to admit the following three premises.

Firstly — The exercise which was made on the 15th Febmiary 1996 is not an election either in fact or in law.

Secondly — It is not possible to hold a free and fair election under the present circumstance having the party government in power.

Thirdly — All the major opposition political parties having boycotted the election under a party government in power, the election so held participated by only one significant political party alone, the election lacks basic ingredient of multy party choice.

Th|s basic realisation shared by all have become part of a national consensus: but yet this consensus is not acknowledged by the defender of the Constitution. Neither by the Election Commissioner, nor by the Prime Minister. So it is not the question whether the President has the power to take over executive authority of the State and conduct the election or otherwise., it is primarily the question of basic honesty which has become a rare commodity as it appears in recognising the reality in present political situation. Exercise of 15th February election was in order to bypass these reallUes both by the

Prime Minister and the Election Commissioner. This basic political truth and politi-cal reality cann’t be buried under the nips of false voting or under the inflated result sheets, nor the voice of people can be drowned under the volume of lies relayed by the BTV.

The solution is therefore' I would suggest that, if at least the Election Commission would be honest enough to recognize that there were no election on 15th February as an election contemplated under the constitution, it is within Its powers to reject and cancel the election as a whole and request the* President to refer the matter to the Appellate Division as to what can be done in respect of holding a fresh election in which all the major political parties could participate and whether any interim government can be formed within the constitutional framework in order' to usher a Representation government in power. The Prime Minister should in her own turn must acknowledge the reality. She must act as an in- • terim Prime Minister as she is today and not as the chairperson. of BNP. She ought not to forget that she holds a constitutional post. Often she has said that she is under oath to uphold the Constitution. Let her realise that there has been failure on the part of the Election Commission to hold the election. The exercise of 15th February is anything but an election as contemplated, tinder the Constitution.'Furthermore. there have been at least 10 constituencies where election could not be held and election in most of the centres are incomplete in many.

- In the premises the EC failed ta hold the election in the eye of law and within the time as prescribed under the constitution. If there is consensus in the above three premises made in the reference itself to the Appellate Division of the Supreme Court could advise, after hearing all the concerned parties, as to how the present impasse could be resolved through constitutional device and by meeting the need of the hour Within a legal frame.

Such a reference can also be made by the President suo motto as the' making of the reference would not amount to exercising the executive authority but a mere seeking of opinion under a given situation. It will be. however, graceful. If such reference is made with the concurrence of the Prime Minister. Let there be grace in admitting the truth and the reality. Truth and the realisation of the truth alone with an honest mind and a sincere will to resolve the problem for the benefit of the enffre nation can only help us in this situation. Above all it is most important that people irrespective of their party .leanings must be able to voice the truth and reality of today. We can not allow another Nero in Bangladesh to play the flute of |x>wer while Chittagong. Na-rayanganj and Nilphamaries are burning.