Has the President exhausted all the options under the Constitution before assuming the post of the Chief Adviser?
by Barrister Harun ur Rashid
Former Bangladesh High Commissioner to Australia (1982-84) &
Ambassador to the UN, Geneva
Politicians, lawyers and members of civil society are hotly debating on the question raised in the title of this piece. There is no consensus on the issue and they widely differ in interpreting the Constitution.
Let us examine the issue in a dispassionate manner.
The President is bound to preserve, protect and defend the Bangladesh Constitution as per oath when he assumed the high office. The oath also makes him to "do right to all manner of people according to law, without fear or favour, affection or ill-will" (Article 148 of the Constitution).
In 1996, the Constitution was amended. Under Chapter IIA of the Constitution, the Non-Party Care-taker government is to be installed to hold elections. This is because in the past, political parties perceived that the ruling party failed to conduct a free, fair and credible election. It is a unique provision and probably the only one around the world.
The words "Non-Party" are to be emphasised. This means that it is not simply a Care-taker government or All-Party Care-taker government but a Non-Party government. The idea behind is that the Non-party Care-taker government led by the Chief Adviser would be completely non-partisan in holding a credible election through the Election Commission.
Non-Party Care-Taker Government:
Article 58B of the Constitution gives the scope, composition and functions of the Non-Party Care-taker government.
The President has four options to appoint the Chief Adviser (the Chief Executive of the Care-taker government) under 58C (3), (4) (5) and (6).
The provision of 58C (3) does not give much scope for the discretion of the President in appointing the Chief Adviser. He has to follow the provision of the Constitution, i.e. the last retired Chief Justice would take the office of the Chief Adviser.
Since the last retired Chief Justice has declined to accept the post, it created a new situation that was not contemplated by the authors of the amendment of the Constitution in 1996.
The President has now to fall back on Article 58C (4). The words used are confusing because it states that if "no retired Chief Justice is available". Some interpret that the phrase includes all available retired Chief Justices of Bangladesh and the President is bound to ask one by one as to whether they would accept the post of the Chief Adviser.
Others interpret differently and argue that the phrase in 58C (4) is to be read in conjunction with its sub-clause 58C(3) by which only two retired Chief Justices are eligible, that is the last retired Chief Justice and the Chief Justice retired next before the last retired Chief Justice. Since the second person in question has passed away, more complexity has developed in interpreting 58C (4).
They further argue that the phrase speaks of "Chief Justice" as distinct from the word "Chief Justices" and therefore rules out the possibility of consideration of all available retired Chief Justices.
The confusion and different interpretation of the phrase is entirely due to poor drafting. Had the phrase been qualified by the words "as specified in sub-clause (3) of this Article", this debate would not have taken place.
To resolve the issue, one needs to go through the preparatory documents and discussions of this very sub-clause (4) to know the purpose and object of the phrase
" No retired Chief Justice" is available.
Appointment of Chief Adviser from among citizens:
The President then goes to the next sub-clause (5) of Article 58C. He is bound to consult major political parties (not all political parties) in appointing the Chief Adviser from among "citizens" of Bangladesh (not from eminent citizens) who are qualified under this Article.
The sub-clause does not say that major political parties have to agree to a candidate. The President is only to consult and not that an agreement has to be reached among major political parties on a candidate.
The President has to be satisfied that a citizen is non-political and under the age of 72. By not doing so, the general view is that the President has not followed the letter and spirit of the Article 58C (5) of the Constitution. In fact, it is strongly argued by many that he has violated the provisions of the Constitution to which he is oath bound to preserve, protect and defend.
Is it too difficult to find an appropriate citizen of Bangladesh to be the Chief Adviser?
The view among general public is that it is not too difficult for the President to select and appoint a citizen as the Chief Adviser. The President has all the agencies including the intelligence agencies to find an appropriate person in Bangladesh.
Constitutional lawyers vigorously argue that what the President did was to jump to next sub-clause (6) of Article 58C, by passing sub-clause (5). The result was that he assumed himself the office of the Chief Adviser. This provision was the last resort for the President, after exhausting the provision of sub-clause (5).
Since it has been argued that he has not exhausted the application of sub-clause (5), he cannot jump to the next sub-clause.
It has been argued that the President has the time to appoint a Chief Adviser from among citizens of Bangladesh and resolve the much-heated controversy. Many argue that those who have advised the President did not do him any good.
It seems that the provisions of the Non-Party Care-taker government need a hard look for revision because it does not work as it was expected. The whole purpose of the Non-Party Care-taker government is in jeopardy because it is argued that much thought was not given when the 13th amendment was for Non-Party Care-taker government adopted in 1996.