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President Assumes State Power Part III : Published on May 03, 2009 Justice Mahmudul Amin Choudury by passedIn my last dispatch (see: President Assumes St. Power-2) I narrated how the President took steps to become the chief adviser of the ensuing caretaker government. He very cleverly managed to by pass the provisions 58(c) (3) and (4) which provide to chose the chief adviser from among the apex court judges. When the justice KM Hasan�s decline was known to the President on October 28, 2006, afternoon he should have immediately asked Justice Mahmudul Amin Choudhury next to Justice KM Hasan under the circumstances as his predecessor in the list of supreme court chief justices Justice Mainul Reza Choudhury is dead to take the oath as chief adviser when Justice Mahmudul Amin Choudhury made to the President his position very clear by saying that he was ready to take over the office of the chief adviser and question of �embarrassment� on his part did not arise. Instead the President asked the BNP high command what to do. The high command asked the President not appoint him as CA on the plea that he will not be acceptable to them because his constitutional position is not clear regarding his eligibility to be considered as CA from among the list of chief justices. President like an obedient boy cancelled the name of Justice Mahmudul Amin Choudhury. In this regard let hear what Justice Choudhury had to say. According to the interview he gave to a local daily press reporter over telephone, �On Saturday night he had a telephone call from Bangavaban. The military secretary of the President on behalf of the President wanted to know if he would feel embarrassed in accepting the post of CA. The justice told him that would not, and ready to accept it if the President request him formally. No feed back was sent to him any more.� (Bhorer Kagoj, October 30, 2006). Even there is no reference to this in the address of President as CA on October 29, 2006 night. Justice Hamidul Haque, retired judge of appellate division declined under duress ?
By passing provision 58(C) (3), the
President invoked 58(C) (4) in a very clever move to find a retired
judge from appellate division again with the intention of bluffing the
public and the opposition. He by passed the first name Justice MA Aziz
on the plea that the judge is currently holding the constitutional
position of CEC. Intention was very clear and had two-fold purpose. The
President knew very well that MA Aziz would not be favoured by the
opposition because of his controversial role in election commission so (i)
he struck of his name from the least on the surface to appease the AL
and its allies, and (ii) the BNP and its allies need Aziz to stay on in
EC to materialize their evil design of election maneuvering.
The next man in the list was Justice
Hamidul Haque. The Bangavaban played also a very clever game with the
intention of getting a �NO� from the justice. The circumstantial
indicate clearly that a pressure if not directly but indirectly, was put
on his shoulder to express his �embarrassment�. It is learnt that
justice Haque was mentally ready to accept the office of the CA if he
were acceptable to both major parties, namely AL and BNP.
According to press report it is learnt
that on Saturday night (28th October) he received a phone
call from the military secretary of the President asking him if he would
feel embarrassed in accepting the post of CA. He agreed to accept the
office if both major parties agreed. From the other end he was told that
one party had reservation about him with implied indication it would be
easier for the President if he said no. Feeling the implied desire he
decided to decline and handed over a hand written letter of �NO� to a
man from Bangavaban. His letter was written very hurriedly which is very
obvious as there were many strikes and then insertion here and there. As
appeared in the press he put forward two reasons for his decline in
order to avoid controversy and lessen the tension of the situation.
(1). A section of law experts said that in
the absence of Justice Hasan, next man to be considered for CA should be
Justice Justice Mahmudul Amin Choudhury. In this backdrop if he accepted
the office of CA his choice would have been questionable.
(2). Mr. Mannan Bhuiyan, SG of BNP raised
his capability of becoming the CA.
When he was asked about his incapability,
raised by Mannan Bhuiyan, the Justice commented that he had no knowledge
why he raised such question. If he meant constitutionally, then it is a
debatable, but he meant otherwise regarding his fitness physically and
mentally he commented, � I am physically and mentally quite fir to
accept such office. It is unfortunate the Mr. Bhuiyan raised such
question about me.�
Bhorer Kagoj reported that one of its
reporters had a talk with Justice Haque at 8 pm night on Saturday,
October 28, 2006 when he had expressed that he were ready to accept the
post of CA if President requested him. But what happened in one hour
after receiving a phone call from the military secretary from Bangavaban
is any body�s guess. We could only speculate. According to a source
close to the justice his �NO� was extracted from Bangavaba under duress.
A gentleman from the President�s behalf from Bangavaban came to his
residence and collected a hand written letter of �NO� very hurriedly on
the night of Saturday (October 28, 2006).
Now let us analyse the action and
behaviour of the President in respect of two judges- Justice Mahmudul
Amin Choudhury and Justice Hamidul Haque, both satisfy the requirement
of the article 58(C) (7). The courtesy demands that in a serious matter
like choosing a person for the post of CA, President should have invited
Justice Mahmudul Amin Choudhury first if the President though he fits in
according to the constitution instead of seeking his opinion over phone
through a third person like his military secretary. Justice Choudhury
was not only a very capable judge of the apex court, but is a very
learned man, as I heard. Unless he had convinced himself that according
to the provision of the constitution (58(C ) (3) ) he is fully eligible
to assume the office of the CA he would not have said that he was ready
to accept the office of the CA. President could have discussed the
matter frankly with him and sought his advice. The Justice would have
gladly pointed out if there were any constitutional lacuna in appointing
him as CA. If the President had any doubt regarding constitutional
interpretation he could have asked him or referred the matter to the
Supreme Court. Instead our most obedient president followed what the Ex
PM and her gang instructed him to do. Regarding Justice Hamidul Haque
the President behaved with him very discourteously � he should have been
invited by the President and discuss the matter. Why he should be not
acceptable to all as he fulfilled all requirements. President just acted
as per instruction of BNP high command as Mr. Mannan Bhuiyan questioned
his incapability. If Justice Haque had no political association nor had
any other disqualification as per provision of the constitution 58(C )
(7) then why President should listen to a silly objection of Mannan
Bhuiyan or his Chairperson Begum Khaleda. He listened to them because he
was told to do so in materializing the grand scheme of making the
President their caretaker government head.
The President then entered the final act
of the drama. He staged an eye wash show of political dialogue, which
included Jamat, JP and VNP on one hand (whose views would be more or
less identical � �Whatever the President do we will agree, we have
confidence in him�) and on other hand single party AL. This farcical
dialogue is bound to fail and the President new it very well. The AL
formally handed over a letter containing their suggestion. But
unfortunately the President did not take any cognition of those
suggestions in stead he sided with the desire of the BNP gang led by
Deshanetri Khaleda Begum. Taking advantage of the failure of the
political dialogue with the President under 58(C) (5) he opted for
applying the last provision of the constitution 58(C) (6) by which he
made him the Chief Adviser of the caretaker government.
Question is why the President became so
impatient to select the chief adviser so hurriedly as if his time is
running out. Firstly why he limited himself with three pro BNP and only
one opposition party. The constitution permitted him to have
consultation with �major� political parties �as far as practicable�. He
has invited not a single left party with in the alliance or outside the
alliance. As if he has not heard the name of Workers Party, JSD led by
Inu, Gana Forum, CPB (outside the 14 party alliance) and newly formed
Liberal Democratic Party led by Dr. Badruddoza and Col. Oli Ahmed. Even
he omitted JP of Anwar Hosain who had parliament representation.
Has the President exhausted all his means
before putting him in the office of CA ?
I believe not. The spirit of the
constitution is never intended to place the responsibility of the office
of CA under the President. This is the last resort when all the previous
were exhausted. The constitution�s very intention is to give priority to
the retired Chief Justices of Supreme Court and judges of the
appellate division. As pointed out earlier the President very hurriedly
by passed those provisions. He then farcically terminated the so-called
political dialogue announcing its failure. It is very difficult to
understand that the President could not find a single non-party person
acceptable to all concerned from among 12 crores of people. He should
have explored other sources- such as consulting with section of citizens
known as civil society who could assist him in his search. Another one
or two days would have not mattered. Unfortunately the President had
mind-set in appointing him as CA as per instruction and directives of
his benefactor.
All his actions point that he went through
did all these eye wash steps to materialize the grand scheme of election
engineering and manipulation. The design was cleverly planned and very
subtlety executed through the office of the President. The plan of
getting a CA of BNP�s choice has a few alternatives each one has to be
carried out is the earlier one fails. First BNP put their eggs, not all
on the basket of Justice Hasan and tried their ultimate end to make it
success by staging Hasan-Drama; if the President was not able to face
the situation because of his ill health or incapability then he was
asked to go to CMH vacating the President�s chair. Mr. Jamiruddin Sarkar,
the speaker would do the needful to install Justice Hasan. But decline
of Hasan prompted them to switch over to stage the second drama may be
termed as Eiazuddin-Drama in which President Eiazuddin was the chief
actor. The grand design of the scheme was to put their man in the chair
of CA, which they successfully did. But why they are keen to put Hasan
or Eiazuddin in that chair. They want to be 100% sure that their man if
put in the chair of CA then the grand and skillful election mechanism,
popularly known as election engineering could be materialized and the
BNP could return triumphantly to state power. Is President a non-party man ?
The answer is simply no. Politically he
was the follower of BNP while he was a teacher in the belonged to what
is called Sada dal. As far as I know he is a man of week character, meek
personality, flatterer and man of high ambition. He was one of the most
beneficiaries among the pro BNP intellectual. He had been serving the
BNP interest very faithfully for a long time for which he was amply
rewarded- he was the adviser of caretaker government of Justice
Sahabuddin as a BNP nominee, he was made chairman of the Public Service
Commission and served BNP interest very faithfully, he was chairman of
the University Grants Commission, and finally he was made the President
as a BNP nominee. Even after becoming the President he never uttered, as
far as I remember, that henceforth he became a non parry neutral man
severing his all past association with BNP. On the other hand he
faithfully served the interest of BNP acting more as BNP nominated
President rather than country�s President.
Can the President rise above BNP domination ?
Many have expressed hope and put faith in
President Eiazuddin�s wisdom that he has a great challenge ahead to
prove himself a truly neutral man and non-party man. I have my serious
doubt in his capability and sincerity in view of, particularly, the way
he manipulated the provisions of the constitutions and violated the
spirit of constitution by putting him in the office of the CA. Why did
he do that? He was put in the chair by his mentors to carry out the
election winning mechanism designed and planned by the BNP high command.
The man who can condone a killer-convict of death penalty because the
killer was a BNP party cadre at the instance of BNP high command, how
can I put my faith in his wisdom, judgment and integrity who can hold a
free and fair election and act as a neutral nonpartisan president and
chef adviser.
So from the above facts and analysis, I
think the President has occupied the chair of the CA through a
constitutional coup de tat, of course bloodless. He is the most powerful
man in Bangladesh to day� enjoying the privilege of the President,
holding the executive power by grabbing the office of CA and the armed
forces is under his disposal during the tenure of caretaker government
as the President apart from being the constitutional supreme commander
of the armed forces. . Is the President eligible to hold the office of the Chief Adviser ?
A valid question has been raised whether
the President Dr. Eiazuddin Ahmed is eligible for becoming the Chief
Adviser. Does he fulfill the eligibility as required by the article
58(C) (7) of the constitution? To become the Chief Adviser one must
fulfill the eligibility required for becoming an ordinary Adviser first
as stated below: (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; (c) not, and have agreed in writing not to be, candidates for the ensuing election of members of Parliament; (d)
not over seventy-two years of age.
To become a chief adviser one must be one
of the following:
* Retired Chief Justice (s) of the Supreme
Court
* Retired Judge(s) of the appellate
division
* A citizen of Bangladesh
* The President of the Country
Each one of the categories above must also
fulfill 4 eligibility requirements as stated above. The President fails
to fulfill the age requirement (e), as he is now 76 years of much over
72. Under this score the President Dr. Eiazuddin Ahmed is not eligible
to hold the office of the CA.
Many argue in favour of Dr. Eiazuddin
that he is immune from condition as he is the President. They stress
that for President becoming CA �Presidentship� is the only criteria.
Those conditions are applicable only to the judges and citizens. But
nowhere in the constitution it is said that the President is immune from
those conditions. To me it does not sound a valid argument. The
constitution cannot make such discrimination between the President and
other category stated in the 58(C) (3) � (6). The constitutional
treatment must be equal to all in appointing a CA from whatever category
he comes from President or no President.
This is the precise reason why I termed
the assumption of power of the chef executive of the care take
government President has staged a constitutional coup de tat. I know
many will disagree with me.
More over he is a very weak physically �
he is under the medical advise not to work more than three hours
following a serious by pass surgery a few months back. He should have
not undertaken such huge responsibility.
Epilogue:
10
adviser of caretaker government have been shorn in tonight at just after
10-30 pm. They are-
1.
Justice Fazlul Haque
2.
Dr. Akbar Ali Khan (former cabinet secretary)
3.
Mr. Shafi Sami (former foreign secretary)
4.
Lt. Gen. (retd) Hasan Masud Chowdhury (Recently retired Army
chief)
5.
Mr. M. Azizul Haque, former IG
6.
Dhwiraj K Nath (former secretary)
7.
Advocate Sultana Kamal
8.
Ms. Yasmin Morshed (Chairperson Scholastica Pvt. Ltf.)
9.
Mr. Mahbub Alam (Journalist)
10.
Prof. Sufia Rahman (retired professor) The End..
________ 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.
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