The parliament is one of the most important constitutional organizations. Members of parliament from the same standing take part in the lawmaking process and running of the government. There has been specific direction in the constitution as to the time of holding the general election of members of parliament and also about the qualifications and disqualifications to participate in the election. The date of the election is determined and the persons eligible to participate in the election engage in contest.
As to the matter of holding the general election of members of parliament, Article 123(3) (a) (b) of the 1972 constitution successively provided that (3) a general election of the members of parliament shall be held — (a) in the case of a dissolution by reason of the expiration of its term, within the period of ninety days preceding such dissolution; and (b) in the case of a dissolution otherwise than by reason of such expiration, within ninety days after such dissolution. Subsequently in 1996 through 13th amendment to the constitution by bringing in amendment to article 123(3) (a) provision was made that — a general election of members of parliament shall be held within ninety days after parliament is dissolved, whether by reason of the expiration of its term or otherwise than by reason of such expiration.
Subsequent to1972, till holding of the 7th general election of members of parliament, no necessity arose to hold the general election of members of parliament following provisions laid down in article 123(3) (a) of the original constitution of 1972. The first parliament was constituted with the members of national and provincial assembly through election held under the martial law framework of Pakistan and after independence this parliament was named constituent assembly. This parliament was dissolved after enactment of the constitution. The second, third, fourth, fifth and sixth parliaments were dissolved prior to completion of the term.
By the fifteenth amendment of the constitution in the matter of holding general election of members of parliament the provisions as laid down in article 123(3) (a) and (b) of the original 1972 constitution have been reintroduced. As to the matter of qualifications and disqualifications for participating in the general election of members of parliament article 66 of the original constitution of 1972 provided that (1) he must be a citizen of Bangladesh and must have attained the age of twenty-five years. Alongside that, it has been said that (2) a person shall be disqualified for election as, or for being, a member of parliament who (a) is declared by a competent court to be of unsound mind; (b) is an undischarged insolvent;(c) acquires the citizenship of, or affirms or acknowledges allegiance to, a foreign state; (d) has been on conviction for a criminal offence involving moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release; (e) has been on conviction for any offence under Bangladesh Collaborator (Special Tribunal) Order, 1972; or (f) is disqualified for such election by or under any law.
Subsequently by the Second Proclamation Order No IV of 1978 Sub-clause (dd) and Clause (2A) were inserted in Article 66. By the sub-clause (dd) it has been determined that if a person in addition to disqualifications discussed in article 66 holds any office of profit in the service of the Republic other than an office which is declared by law not to disqualify its holders in that case he shall not be qualified for election as, or for being a member of parliament.
In Clause (2A) of Article 66 it has been stated that for the purposes of this article a person shall not be deemed to hold an office of profit in the service of the Republic by reason only that he is a President, Prime Minister, Speaker, Deputy Speaker, Minister, Minister of State or Deputy Minister.
Evidently by inserting Sub-clause (dd) a person has been declared disqualified to participate in the election while holding office of profit in the service of the Republic and alongside to that by inserting clause (2A) certain office holder such as President, Prime Minister, Speaker, Deputy Speaker, Minister, Minister of State or Deputy Minister have been exempted from disqualification. The literal meaning of this matter is that the above office holders in spite of holding office of profit for the purposes of this article shall not be deemed to hold an office of profit in the service of the Republic. It means these office holders have been made qualified to participate in the general election of members of parliament or any election of members of parliament while being in the office.
The explanation of office of profit in the service of the republic has neither been given in the constitution nor in any other law. In general sense, the office of profit in the service of the republic means such office holders who receive pay and allowances or honorarium from the state exchequer. In this sense, all public servants are deemed to have hold office of profit in the service of the Republic. As per definition given in the Penal Code, Prevention of Corruption Act, 1947, The Criminal Law Amendment Act, 1958 and Anti Corruption Act, 2004 Mayor and Commissioners of City Corporation, Chairman and Commissioners of Municipality and Chairman and Members of the Union Parishad are public servants. Members of parliament like that of public servants of the Republic receive pay and allowances from state exchequer while being holding the post. In that regard the post of a member of parliament is an office of profit in the service of the Republic. In Article 66 of the constitution in the covering of member of parliament although certain office holders have been made qualified to participate in the general election of members of parliament but a member of parliament solely as being member of parliament has not been brought within the scope of said qualification.
In the present tenth parliament, those whose standing is only as member of parliament, obviously would be considered disqualified to participate in the election if election is arranged as per provisions laid down in article 123(3) (a) of the constitution. In this respect if they are to be made qualified to participate in the election then certainly there is need of bringing amendment in article 66(2A) by including them along with other office holders.
In no democratic country of the world is an election arranged keeping the parliament in force. In the United Kingdom as well as other democratic countries the King or Queen or the President after dissolution of parliament requests the immediate past cabinet to perform the daily routine work for maintaining continuity.
If the election is arranged keeping the parliament in force the complicacies which will arise are, firstly — if the existing member of parliament fails to win in the election then it would be seen at the same time there are two members of parliament from the same constituency; secondly — many have anticipation as to whether the ruling party would peacefully handover power if they fail to secure majority to form government; thirdly — if the defeated ruling party refuses to accept the result of election then how it would be resolved; fourthly — if the President would have been elected by the ruling party for political view-point in any controversial situation to what extent it would be possible on his part to take stand against the ruling party; fifthly — there is no the guarantee that the Election Commission appointed by the ruling party would discharge its functions neutrally; sixthly — how the fairness and neutrality of different service chiefs and secretaries to the government along with Deputy Commissioners, Superintendents of Police and Thana Nirbahi Officers would be ensured and seventhly — the members of cabinet who would participate in the election in the context of our country how their fairness and neutrality would be ensured.
Until the aforesaid complicacies are resolved, if an arrangement is made to hold the election keeping the parliament in force, it would not make way for participation of all in the election. It would seize the right of the existing members of parliament to participate in the general election of members of parliament.
The writer is a former Judge & former Registrar, Supreme Court. Email: email@example.com