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RESPONSE TO GOWHER RIZVI Plenty of room for confusion

Shakhawat Liton
THE 10th parliamentary election was held on January 5 before expiry of the 9th Parliament. This has happened for the first time in Bangladesh. Our original constitution of 1972 had introduced such a provision for holding general election in the case of dissolution of a parliament by the reason of expiration of its term within the period of 90 days preceding such dissolution. In case of dissolution otherwise than by reason of such expiration, the election will be held within 90 days after such dissolution. The provision for holding general election within 90 days before dissolution of parliament existed without any break until introduction of the caretaker government system in 1996. But this provision was never exercised before.
The 13th Amendment to the constitution, which introduced the CG system, had repealed this provision. But it was restored by the constitution's 15thAmendment in June 2011, which simultaneously scrapped the CG system. With restoration of this provision, a related proviso of the original constitution was also brought back. According to the restored proviso of the Article 123 (3) (a) persons elected at the general election shall not assume office as members of parliament except after the expiration of the term of the parliament that exists during their election.
Justice Abdul Wahhab Miah, a judge of Appellate Division of the Supreme Court, in the verdict on the constitution's 13th Amendment case says: "So, if the election of members of Parliament is held before the expiry of the said period of five years as contemplated in the Article 123 (3) (a) [of the constitution! naturally the right of the sitting members of Parliament shall continue till the period of five years expires."
So, persons elected in the 10th parliamentary election can no way assume their office as MPs before expity of the term of the 9th Parliament after January 24. But newly elected MPs did not wait for expiry of the 9th Parliament. They took oath on January 9, triggering constitutional controversy. Undoubtedly, two parliaments - 9th and 10th - now exist simultaneously, which is unprecedented in the contemporary world history of parliamentary democracy.
Amid such a situation Gowher Rizvi, an advisor to the prime minister, in an article styled "Oath of MPs-elect: No room for confusion," published in some newspapers including The Daily Star on Sunday came up with his interpretation to brush aside the debate.
Let us take his interpretation one by one for examination. I Ie did not find anything wrong with MPs taking oath, keeping the 9th Parliament in force and argued that "there is no question of two parliaments - 9th and 10th Parliaments - existing at the same time." In his view, the 10th Parliament will come to life when convened by the president on January 25, or as soon as possible after that date.
His claim is curious. Why? The first function of a parliament in the parlia-mentary democracy is to provide a government. The 10th Parliament constituted through MPs taking oath has already accomplished this job. Immediately after their swearing in, MPs belonging to the AL, that won threefourth majority in the polls, elected Sheikh Hasina as the leader of the majority party at a meeting of ALPP. And according to the constitution, President Abdul Hamid appointed her as prime minister and administered oath to her on January 12. She formed her cabinet and distributed portfolios among them. And on advice of the premier the president on the next day convened the 10th Parliament on January 29. Will Gowher Rizvi still claim that the 10th Parliament is yet to exist? Yes, the other functions of the parliament will start from its first sitting on January 29.
Can Gowher Rizvi cite any such weird instance of constitution of a parliament keeping the previous one in force? We are unable to find such an unprecedented record in countries practicing parliamentary democracy. Countries like the UK, birthplace of the Westminster style of parliamentary democracy, New Zealand, Australia and Canada go to general elections through dissolving their parliaments. India is the only exception. Over the past 60 years, it has held 15 general elections. Of them, the parliament, popularly known as Lok Sabha, continued during the general election on eight occasions. Sometimes parliament was dissolved after the election process had begun. But on all occasions, the new parliament was constituted after dissolution of the old one.
In his article, Gowher Rizvi however admits that the 9th Parliament remains in place until it expires on January 24. Unlike some of the ruling AL leaders, including Syed Ashraful Islam and former law minister Shafique Ahmed, he did not claim that the 9th Parliament stands dissolved with the newly elected MPs taking oath.
He, however, claimed that MPs taking oath on Thursday will assume the office on future date. This claim is strange. The constitution does now support his claim as it, in Article 148 (3), emphatically says: "Where under this Constitution a person is required to make an oath before he enters upon an office he shall be deemed to have entered upon the office immediately after he makes the oath." In the opinion of former law minister Shafique Ahmed, eminent jurists Rafique-Ul Huq, Shahdeen Malik and many others, however, the MPs have assumed their office with the taking of oath. If MPs did not assume their office as claimed by Rizvi, how did they elect Hasina as the majority party leader paving the way for formation of the new cabinet?
In defence of hurried oath-taking, Rizvi claimed: "First, it is only after the oath has been administered that the majority party can elect its parliamentary leader. Second, until the parliamentary leader is elected, the leader of the majority party cannot request the president to convene the new parliament (after the expiry of the old). Third, and perhaps most importantly, the person elected as the leader of the parliament is also the prime minister-designate."
But this claim is erroneous too. The leader of the majority party can in no way request the president to convene the parliament. Rather, it is the prime minister who, as per the constitution, advises the president to convene the parliament. His third point is also incorrect. The person elected as the leader of the parliament is not the prime minister-designate. Rather, as per the rules of procedure of the Jatiya Sangsad, the majority party leader as soon as s/he is sworn in as the premier becomes the leader of the House. Section 2 of the rules of procedure says: "Leader of the House means the Prime Minister or a Minister who is a Member of Parliament and is nominated by the Prime Minister to function as the Leader of the House."
At the end of his article, Rizvi stressed the need for the beginning of the work by the new government "without any delay" describing the prevailing violent incidents. This defence sounds like favouring the 'doctrine of necessity,' not the constitutional provision.
In his article, Rizvi, however, took the old fashioned line to blame newspapers and people who speak in the talk shows of proffering conflicting views as to the legality of the MPs taking oath. Has he himself refrained from proffering conflicting views? .
The writer is Senior Reporter, The Daily Star.