The hon'ble president was a respectable teacher in the Science faculty (and not in the Arts faculty). He is not supposed to know the intricacies of constitutional law, though by this time he should have some idea about the constitution, more so when he could jump Sub-Articles (4) & (5) of Article 58C of the constitution and assume the "functions of the Chief Adviser of the Non-Party Care-taker Government."

Since he has, rightly or wrongly, assumed that responsibility, so long he is continuing in the said post, for God's sake let him work within the framework of the constitution. Barrister Rashid has clearly pointed out that he shall act in accordance with the advice of the non-party caretaker government and not in the manner as presidential form of government on the advise of his "teacher," as observed by Sheikh Hasina. By this time we have all become "constitutional experts."

In such situation let him also act as a "constitutional expert" and exercise the executive authorities of the republic in consultation with his advisors. His advisors are not his domestic employees but they are his hon'ble and respected "advisors" and have also constitutional responsibilities. They are all very respectable, learned, honest, and persons of integrity. If necessary, the present CA also may consult the previous CAs to know as to how they used to exercise the executive power of the republic.

So far as we know, they used to take all decisions on the advice of their advisors.

However, leaving aside all this constitutional advice, please let us face the realities. We are now facing two political extreme rival groups headed by two most respectable ladies. We, the ordinary citizens, cannot afford such confrontation at the cost of our country's existence and sufferings of the people. Let us ignore for the time being the advice given by our Nobel Laureate Prof Yunus. His advice may be a Platonic theory. A person of his stature cannot go below that level. He has rightly said that there should be "Peace Treaty" to save the country. Nobody will disagree with him that the country must have election.

Purely for our own fault and adamant attitude and backed by the present CA's act of omission and commission we have lost more than 30 (thirty) days out of 90 (ninety) days within which the election has to be held. This lapse of time has to be compensated if both parties agree to hold the election, and we think that all parties, including LDP, want the election to be held.

But how this problem can be solved? If the non-party caretaker government decides to have a free, fair, and impartial election, then let them appeal to all parties to give up their program in the street and concentrate on free and fair election, on the undertaking, inter alia, that:

(i) The president shall obtain an order for extension of time for holding the next election from the Appellate Division of the Supreme Court of Bangladesh under Article 106 of our constitution. Article 106 is quoted below:

"If at any time it appears to the President that question of law has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to the Appellate Division for consideration and the division may, after such hearing as it thinks fit, report its opinion thereon to the President."

In the past there are instances that in such situation the government sought advice of the Supreme Court to find out a solution of the constitutional deadlock. The court in such situation invoked the doctrine of state necessity embodied in the maxim salus populi est suprema lex (public welfare is the highest law). This theory has been discussed in many cases in this sub-continent.

Chief Justice Hamoodur Rahman preferred to call it a "principle of condonation" rather than principle of necessity. In another case, Supreme Court of Pakistan applied the principle of necessity to validate a "constitutional deviation." Whatever term is used, the court can condone the extension of time to hold the Election of 2007. After all, the constitution is for the people, and for their rightful cause, the court can exercise that power even if there is slight deviation from the strict constitutional provision.

Mr SA de Smith in his Constitutional and Administrative Law (6th Edition) while commenting on the theory of state necessity has observed that:

"But the necessity must be proportionate to the evil to be averted, and acceptance of the principle does not normally imply total abdication from judicial review or acquiescence in the supersession of the legal order; it is essentially a transient phenomenon. State necessity has been judicially accepted in recent years as a legal justification for ostensibly unconstitutional action to fill a vacuum arising within the constitutional order in Pakistan, Cyprus, Rhodesia and Nigeria."

So far as I know, our Appellate Division had no opportunity to decide any case on the basis of state necessity except in the case of detention of President Ershad by the then government of Justice Shahabuddin, the Appellate Division observed that:

"The action of the Government taken in an extra-ordinary situation at that time might have been justified on the doctrine of necessity but it would never qualify as a legal order under the Act." (i.e. Special Powers Act).

In the case of Indemnity (Repeal) Act, 1996 some observation was made by the High Court Division on the doctrine of state necessity.

If we all want the election of 2007 to be properly held and in peaceful manner, then government may extend the time for holding election and then obtain approval from the Appellate Division of the Supreme Court of Bangladesh by invoking the doctrine of state necessity. If such action is proposed to be taken then none should object.

In view of recent controversial action of the chief justice, some may doubt whether such an order can be obtained from the Appellate Division. I am optimistic, however. After all, the chief justice himself is not the Appellate Division. There are six other hon'ble judges. The chief is merely the first of the seven.

(ii) In the meantime, the demands of all major parties including LDP may reasonably be solved by the caretaker government as expeditiously as possible. We cannot afford to lose further time.

(iii) The electoral roll may also be rectified. By amending the relevant law by way of an ordinance such objection may quickly be disposed of. Long drawn procedure may be avoided. If the intention is honest and sincere, then nothing is impossible.

(iv) The present election schedule should be cancelled and it may be announced after a month.

This suggestion is given considering the interest of the country and to avoid the suffering of the people. Let us go back to our normal life and the non-party caretaker government proceeds fast to hold a free, fair, and impartial election.

Today or tomorrow, when the government will be compelled to come to some sort of compromise with the political parties, then time may lapse beyond 90 days. So I am giving this suggestion in advance before we go deep into further deadlock.

Neither the army would like to come out from the barracks to help us in such situation, nor do the people want them to. Let us work within the "limit" of the constitution. The non-party caretaker government may decide to extend the time for election of 2007 and invoke Article 106, and in the meantime all agitations should be postponed.

Barrister Rafique-ul Huq is a Senior Advocate, Bangladesh Supreme Court.