President Assumes State Power Part II : Is it constitutional or a constitutional coup de tat? Ajoy Roy

President Assumes State Power Part II : Is it constitutional or a constitutional coup de tat?

Ajoy Roy

Published on May 03, 2009

Last night Dr. Eiazuddin Ahmed seized the state power by appointing him Chief Adviser of the care-take government (see part-1 of the series). He was immediately shorn in as the chief adviser in an oath taking ceremony at 8 pm evening by the Supreme Court chief justice. In assuming state power the President invoked the article 58C(6) of Chapter II A of Bangladesh constitution dealing with care-taker government.

The sudden decision of taking over the office of the chief adviser, which according to the constitution enjoys the executive power and privilege as of Prime Minister of the country, has raised eye brow of many including some leading constitutional experts of the country.

Many have raised the question if the assumption of the office of the chief adviser is how far constitutionally legal. Before we go to deal with question of constitutional validity of Presidential step, let us examine what the President said in his last nigh (October 29, 2006) broadcast to the nation as the newly appointed chief adviser. Dr. Eiazuddin as the chief adviser briefly narrated under what constitutional crisis he was to assume the responsibility of the chief adviser. Before that let us recall what the 58C(6) article of the constitution says that was invoked by the President. The article says,

ï¿½(6) Notwithstanding anything contained in this chapter, if the provisions (3), (4) and (5) cannot be given effect to, the President shall assume the functions of the Chief Adviser of the Non-Party Care-taker Government in addition of his own functions under this constitution.ï¿½

The relevant clause indicates that there are (3), (4) and (5) provisions prescribing how to choose a possible chief adviser. It clearly says that President can become the chief adviser only and only other three means completely fail. Now question is has the president sincerely, diligently and intelligently tried to apply those provisions to give effect. But before we go to the question let us see what the president said in his nation wide broad cast in his new role as the chief adviser.

As we reported earlier, before assuming the post of chief adviser, the President held series of talks with a few chosen political parties through their representatives- these include JP (Ershad), BNP, AL and Jamat I Islami (in all only 4 political parties). In the afternoon of 29th October 2006 on behalf of the President a brief press note was read out before the journalists in which it was merely narrated the meeting of the President with important political parties of the country, but there was no indication of outcome of those talks or any decision (positive or negative) of the President, nor presidentï¿½s desire was reflected in the note. In fact it was a meaningless note that only indicated that the President is continuing his search for choosing a chief adviser.

What the Chief Adviser said to the nation The chief adviser briefly put forward an explanation why he had to assume the responsibility of the chief adviser in addition to his own functions as the President. In this respect the chief adviser informed the nation which may be presented in the following brief form:

The country is passing through a critical phase as the tenure of the elected government coming to an end. Constitution says a care-taker government has to be constituted for 90 days immediately (within fifteen days of the dissolution of Parliament)

According to the constitution Justice KM Hasan was to be the chief adviser, the most recently retired chief justice of the supreme court, but as some political parties expressed objection to his appointment and following their violent programme of action he declined to accept it Next person to be chosen, according to the provision of the constitution, was Justice Mainul Reza Choudhury, who retired as Chief justice before justice Hasan, but he was not available because of his death. Next choice fell on the most recently retired judge of the Appellate division, Justice MA Aziz, but as he is already holding a constitutional position of CEC, he is also not available for the post of CA The next man in the series, according to the constitution, is justice Hamidul Haque, who retired before justice Aziz. But he declined to accept the office of CA, as two leading political parties BNP and AL were not unanimous (according to the President) on his choice. In this perspective the President held talks with AL general secretary and BNP secretary general for reaching an agreement; then on the following day he held talks with 4 principal political party representatives who had representation in the dissolved parliament with a view to find an acceptable citizen for the office of CA as per provision of the constitution 58(C)(5). But president reported in his address they failed to come to a unanimous agreement. Seeing no other alternatives as per constitution he has to assume the office of the chief adviser as per provision 58(C) (6) to save the country from political uncertainty and violence. On its face value it will appear from the Chief Advisorï¿½s address that he had followed all the constitutional means as stated in the article 58C (3) to (5) before invoking (6). But thousand-dollar question is did he follow it in the true spirit of the constitution. Before we examine this aspect, let us see the article 58(C) of Chapter II A of the constitution that deals with how a caretaker government is to be constituted:

CHAPTER IIA- NON-PARTY CARE-TAKER GOVERBMENT

58C. (1) The Non-Party Care-taker Government shall consist of the Chief Adviser at its head and not more than ten other Advisers, all of whom shall be appointed by the President.

(2) The Chief Adviser shall be appointed within fifteen days after Parliament is dissolved or stands dissolved and during the period between the date on which Parliament is dissolved or stands dissolved and the date on which Chief Adviser is appointed, the Prime Minister and his cabinet who were in office immediately before Parliament was dissolved or stood dissolved shall continue to hold office as such.

(3) The President shall appoint as Chief Adviser the person who among the retired Chief Justices of Bangladesh retired last and who is qualified to be appointed as an Adviser under this article.

Provided that if such retired Chief Justice is not available or is not willing to hold the office of Chief Adviser the President shall appoint as Chief Adviser the person who among the retired Chief Justices of Bangladesh retired next before the last retired Chief Justice.

(4) If no retired Chief Justice is available or willing to hold the office of Chief Adviser, the President shall appoint as Chief Adviser the person who among the retired judges of the Appellate Division retired last and who is qualified to be appointed as an Adviser under this article.

Provided that if such retired Judge is not available or is not willing to hold the office of Chief Adviser, the President shall appoint as Chief Adviser the person who among the retired Judges of the Appellate Division retired next before the last such retired Judge.

(5) If no retired judge of the Appellate Division is available or willing to hold the office of Chief Adviser, the President shall, after consultation, as far as practicable, with the major political parties, appoint the Chief Adviser from among citizens of Bangladesh who are qualified to be appointed as advisers under this article.

(6) Notwithstanding anything contained in this chapter, if the provisions (3), (4) and (5) cannot be given effect to, the President shall assume the functions of the Chief Adviser of the Non-Party Care-taker Government in addition of his own functions under this constitution.

(7) The President shall appoint Advisers from among the persons who are-

(a) qualified for election as members of Parliament;

(b) not members of any political party or of any organization associated with or affiliated to any political party;

(d) not over seventy-two years of age.

(8) The President on the advice of the Chief Adviser shall appoint the Advisers.

If we look at the provision 58(C) (3) there is no ambiguity regarding the first paragraph which clearly states that the chief adviser will be the last retired chief justice of the supreme court provided he fulfils qualification set in article 58(C) (7) for becoming an adviser of the caretaker government. So just not being a last retired chief justice he has to pass through the eligibility as adviser.

But regarding the second paragraph of the article is there an unambiguous interpretation- question is being raised. If the last retired chief justice is not available then the chief justice who retired just before him becomes the automatic choice for CA. Upto this there is no ambiguity but question is if the second chief justice also is not available (for whatever reason) then what, will the process ends here and provision 58(C) (4) has to be revoked. The interpretation varies. Most of the leading lawyers of the Supreme Court opine that the spirit of the constitution is to find a chief justice of the Supreme Court to assume the office of CA in preference to choices of other categories mentioned in subsequent articles. So the process has to be continued till a suitable chief justice is available for CA who fulfils article 58(c) (7) simultaneously. If this attempt fails then and then only next provision is to be invoked.

Let us see under this provision that were the probable eligible CA. As far as information available to us, the list may be as follows:

Justice KM Hasan, most recently retired chief justice of SC, who declined to assume the office of CA Justice Mainul Reza Choudhury, next retired Chief justice before justice Hasan (died few years back) Justice Mahmudul Amin Choudhury, next retired Chief justice before Justice Mainul Reza Choudhury. As 1 and 2 were not available, number 3 becomes automatic choice who also fulfils the eligibility set forth in article 58(C) (7). Accordingly the President should approach him for assuming the post of CA, and in fact the President contacted him through his military secretary if he were agreeable to assume the office of CA to which Justice Mahmudul Amin Choudhury responded positively. But when the final choice was made he was by passed, under out going PMï¿½s and her hawkish BNP stalwartï¿½s high pressure.

President then as it appears on surface invoked article 58(C) (4) to find a CA from among the retired judges of the Appellate Division. He limited his selection among only two judges, namely-

Justice MA Aziz, who most recently retired, now holding the post of CEC, another constitutional position? Justice Hamidul Haque, retired immediately before MA Aziz and qualifies for the office of CA as per article 58(C) (7). President did not take into account of the name of MA Aziz as he is now CEC (who has already earned a very good name as CEC !). By passing MA Aziz the President approached Justice Hamidul Haque again through his military secretary and under pressure the President managed to get a letter of decline.

It is learnt that earlier Justice Haque was mentally prepared to accept the office of CA if both the leading political parties (BNP and AL) accept him. In obtaining the letter of decline from the Bangavaban it was made known to him that BNP has reservation over him, and even then if he is willing. Sensing the desire of the president, Justice Haque hurriedly send a hand written letter.

o it appears president is moving forward to materialize his own scheme of becoming the CA, perhaps as desired by his mentor BNP chief Deshonetri Begum Khaleda, the erstwhile PM. President then stage the final drama, the story of which forms the material of 3rd part of the present Eiajuddin-drama.

End of Part II

(to be continued)

From Dhaka : Ajoy Roy.

October 30, 2006

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Prof. Ajoy K. Roy--a reputed scientist and human rights activist from Bangladesh--is the member of Mukto-Mona advisory board. He writes from Dhaka.