SOMERSAULTING THE CONSTITUTION: Ahmed Ziauddin

SOMERSAULTING THE CONSTITUTION:

BANGLADESH PRESIDENT BECOMES CHIEF ADVISOR

Dr. Ahmed Ziauddin[1] (fwd: Jamal Hasan)

Published on February 13, 2007

A leading weekly, The Economist, in its 26^th October 2006 edition wrote an article on Bangladesh titled ï¿½Isnï¿½t democracy wonderful?ï¿½ The title turned out eerily right in less then seventy-two hours, when, Bangladesh President assumed ï¿½the functions of the Chief Advisor of the Non-Party Care-taker Government in addition to his own functions under the Constitution.ï¿½ This decision was really ï¿½wonderfulï¿½ as the worst travesty of the Constitution. It seems Bangladesh President is expert in jumping queues.

There is now serious question whether Presidentï¿½s assumption of the position of the Chief Advisor was constitutional or not, whether it followed the constitutional procedures or not. It is almost beyond doubt that the assumption was unconstitutional, as it did not follow constitutionï¿½s ordained sequences.

As the tenure of the BNP-Jamaat alliance came to an end at midnight of 27^th October, on 28^th the President met two leading leaders of BNP and Awami League, informed them of Justice K.M. Hasanï¿½s inability to assume the position of the Chief Advisor, contemplated by the Constitution as the last retired Chief Justice, and according to news reports, expressed his preparedness to lead the Care-taker Government.

Amongst others, in a front-page appeal, the editor of the Daily Star in todayï¿½s edition (29 October 2006), urged the President to stay away from controversy. He wrote, ï¿½..[Presidentï¿½s] offer of himself to head the caretaker chief came a bit too early to be above all legal questions and propriety. There are five distinct steps that need to be taken before the President becomes a legal alternative.ï¿½ The Awami League rightly rejected Presidentï¿½s offer to take over the Care-taker Government so also the Supreme Court Bar Association.

The President, however, disregarded all appeals, but most importantly, provisions of the Constitution. Article 58 C provides six options, five of which have to be exhausted first before the President could become Chief Advisor.

Option 1: Under Article 58C (3),ï¿½The President shall appoint as the Chief Advisor the person who among the retired Chief Justices of Bangladesh retired lastï¿½ and who is otherwise qualified under Article 58C (7). Here the word ï¿½shallï¿½ means, ï¿½mustï¿½ in law with no choice as opposed to phrase ï¿½mayï¿½, which is discretionary.

In case, ï¿½ï¿½such retired Chief Justice is not available or not willing to hold office of Chief Advisor ï¿½then,

Option 2: ï¿½the President shall appoint as Chief Justice the person who among the retired Chief Justices of Bangladesh retired next before the last retired Chief Justice.ï¿½ Use of phrase ï¿½retired Chief Justices of Bangladeshï¿½, the Constitution covered possibility of presence of more than one retired Chief Justices.

Option 3: Article 58C (4), ï¿½If no retired Chief Justice is available or willing to hold office of chief advisor, the President shall appoint as Chief Advisor the person who among retired Judges of the Appellate Division retired last.ï¿½

In case, ï¿½ï¿½such retired Justice is not available or not willing to hold office of Chief Advisor ï¿½then,

Option 4: Article 58 C (4) ï¿½the President shall appoint as Chief Justice the person who among the retired Judges of the Appellate Division retired next before the last such retired Judge.ï¿½

Option 5: Article 58 C (5), ï¿½If no retired Judge of the Appellate Division is available or willing to hold office of Chief Advisor, the President shall, after consultation, as far as practicable, with the major political parties, appoint the Chief Advisor from among citizens of Bangladesh who are qualified to be appointed as Advisors under this Articleï¿½.

Option 6: Under Article 58 C (6), only ï¿½if the provisions of clauses (3), (4) and (5) cannot be given effect to, the President shall assume the functions of the Chief Advisor..ï¿½

Here, the Constitution leaves no choice for the President but to act exactly in this prescribed order. The use of the word ï¿½shallï¿½ limits Presidentï¿½s power and obliges him to act without fail.

Moreover, the use of plural to denote ï¿½retired chief Justicesï¿½ and ï¿½retired Judgesï¿½ means that the drafters of the Constitution assumed that there could be more than one retired Chief Justices and Judges. This is reinforced by the use of the expression, ï¿½If no retired Chief Justice is availableï¿½ and ï¿½If no retired Judge of the Appellate Divisionï¿½ is availableï¿½ in Article 58C (4) and Article 58C (5) respectively, which suggests that option 1 & 2 is only completed when there is not a single Chief Justice is available or willing to act as Chief Advisor, so also for the retied Judge of the Appellate Division.

This also is common sense interpretation. The drafters of the Constitution could not have chosen a retired Judge of the Appellate Division while still a retired Chief Justice was around and willing. Equally, where a retired Appellate Division Judge was available, the Constitution could not have opted for to search a Chief Advisor from amongst citizens of Bangladesh. The idea was rather simple; first exhaust searching retired chief justices, then the retired Appellate Division Judges, then from among the citizens of Bangladesh, and only then, if all efforts failed, the President would assume the responsibility.

If sequences of these constitutional mandates are checked with time lines of facts and happenings on the ground, it will be found how the President jumped the queue and turned from the Defender of the Constitution to its demolisher.

On Friday evening, 27 October, the Presidentï¿½s office announced postponement of Saturdayï¿½s (28 October) oath taking of Justice K. M. Hasan as Chief Advisor as he was ï¿½indisposedï¿½, while immediately, reports appeared in the media quoting persons meeting Judge Hasan around the time, him being in good health, which was confirmed in Judge Hasanï¿½s own statement a day later, explaining his inability to accept the position of the Chief Advisor, where there was no reference of his reported indisposition. That was first knock of Presidentï¿½s credibility.

In any event, when Judge Hasan declined, the President had no choice but to appoint the remaining retired Chief Justice Mr. Mahmudul Amin Chowdhury. According to news reports, BNP then offered to the President different interpretation to Article58 C (3) and (4) the Constitution against appointing Judge Chowdhury suggesting that search for retired Chief Justice stops at two retied Chief Justices and not Chief Justices.

Although this is a non-starter argument, because logically a retired Appellate Division Judge could not get preference over a retired Chief Justice, but nonetheless, this was serious question of interpretation of the Constitution, which never arose before.

In such a situation, the President had two options; he could have invited imminent legal minds of the country to share their views with him, or, most constitutionally, he should have followed Article 107 of the Constitution.

Article 107: Advisory jurisdiction of Supreme Court

If at any time it appears to the President that a 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.

This provision has been there when there are different interpretations of law with enormous public significance, and there could not be anything more important than appointing a Chief Advisor of a Non-Party Care-Taker Government to hold parliament election to ensure continuity of countryï¿½s democratic system.

He did neither, instead, accepted argument advanced by BNP as he himself said in his broadcast to nation after assuming the position of Chief Advisor. He did not appoint the third retired Chief Justice as the second Judge expired, which, under the Constitution, he was obliged to. Meanwhile, the Judge Chowdhury said to the press that he was not offered the responsibility. Thus, the President has placed him in a very tight corner, when the Care-taker Government is supposed to be non-partisan too.

He then rightly ignored option 3 as the retired Judge is currently holding another Constitutional Position as the Chief Election Commissioner, prohibited by Constitutionï¿½s provision to hold to two such positions concurrently.

The President should have then opted for option 4 but as it transpired from the statement to press of the Judge in question Justice Hamidul Haque, he agreed to accept the position of the Chief Justice on condition that if both parties agree about him, since ï¿½different explanations of the Constitutionï¿½s Article 58 (C) have surfaced.ï¿½ In his letter to President, he said, he did not express his inability to assume responsibility.

Justice Hamidul Haqueï¿½s letter should have been enough for the president to rigorously consider question of different interpretation of Article 58 C by resorting to the Supreme Courtï¿½s Advisory Jurisdiction.

But, instead of following these procedures scrupulously one after another, he threw baby out of bath and offered himself the job of the Chief Advisor to two leaders of BNP and Awami League yesterday, skipping all other provisions, option 4 & 5, only to be reminded by the Awami League later to follow the constitutional provisions.

Then he invited only four political parties today (29 October) and supposedly followed option 5 as he later claimed in his speech. None of the participants of todayï¿½s meeting reported President talking about to find a person, from among the citizens of Bangladesh, qualified to be appointed as Chief Advisor. He did not seek any name nor did he himself suggest any.

When the nation was guessing about, he assumed the position of the Chief Advisor, revealed to the nation only when he was invited to take oath as the Chief Advisor at a swearing in ceremony. This was an extremely non-transparent way to assume the position of a supposedly non-partisan, neutral caretaker administrator, to ensure holding of a transparent general election.

On the contrary, for the last few days, former Prime Minister, BNP leaders and Jamaat had been telling opposition political parties and the nation that the Presidentï¿½s decision will be final and all must abide by that, which appears that this was a pre- scripted event, where BNP-Jamaat were part of it and aware of Presidentï¿½s assumption of Chief Advisor position as testified by the fact that no name of any eminent citizen was even raised or discussed under option 5. In other words, all were fixed well before the process began.

This is bound to raise serious doubts about Presidentï¿½s honesty of purpose, and one donï¿½t have to be rocket scientist to guess how transparent and fair the upcoming election would be, when there was this self engineered constitutional coup dï¿½etat carried out by the none other than the President himself.

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[1] The author is a Consultant, International Law. Email: [email protected].