17 May 200, Independent
I would like to draw the attention of constitutional experts, political leaders, lawmakers and intelligentsia of various shades of pinions and backgrounds to the fact that Constitution aimed at the establishment of a non-party, neutral care taker Government to ensure free and fair elections to parliament conducted independently by the Election Commissioner itself contains contradictions and confusions in particular by inserting article 58C (3), (4), (5), (6) dealing with appointment to the office of the Chief Adviser of Non-Party, Neutral Care-Taker Government and Advisers which, in the final analysis, put an end to the very basis of such special entity as a kind of exercise to overcome the present state of the politics of non-confidence, politics of non- cooperation and politics of confrontations and thus reach the goal of democratic rule in course of time. Hence, this is a short-lived accommodation. On all counts and considerations, this is indeed not a democratic rule but may rightly be treated as an unavoidable democratic venture to ensure and cement the path to democracy and democratic rule.
To be more specific and unambiguous, let us, at the outset, look into what those clauses and sub clauses of Articles 58C stand for.
Article 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 and other Advisers shall be appointed within fifteen days after Parliament is dissolved or stand dissolved, and during the period between the date on which Parliament is dissolved or stand dissolved and the date on which the 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 Justice 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 Justice of Bangladesh retired next before the last retired Chief Justice.
Provided that is such 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 last before the last 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 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 as Chief Adviser from among citizens of Bangladesh who are qualified to be appointed as Adviser under this article.
(6) Notwithstanding anything contained in this Chapter, if the provisions of clauses (3), (4) and (5) cannot be given effect to, the President shall assume the functions of Chief Adviser of the Non-party Care-taker Government in addition to 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;
(c) not, and have agreed in writing not be, candidates for the ensuing election of members of Parliament;
(d) not over seventy-two years of age.
So it is very much clear that it is the President who shall take initiative to find out Chief adviser pursuant to article 58C (3) (4) (5) (6) and in doing so, he has the time frame of fifteen days after parliament is dissolved or stands dissolved.
Note that the article 58C (6) stands opposed to article 58C 7(B) because office of the President is subject to the article 48(1) that reads: “There shall be a President of Bangladesh who shall be elected by the majority Members of parliament for a five years term”
Even a student of Political Science or Government and politics or a political activist at the grassroots level understands it very well that a person with or without political affiliation shall never get nomination of a political party, ruling or opposition in parliament, to country the highest office of the country, presidency unless he/she is, in the total analysis of the party, considered to be of great value for the party itself.
For instances, in the Presidential elections of 1991, then Ruling BNP set sitting speaker of Parliament Abdur Rahman Biswas, a BNP Leader under Prime minister Khaleda Zia, and voted him to the Presidency against opposition Awami League’s candidate former Chief Justice Badrul Haider Chowdhury, a personality without a political affiliation according due considerations and weights to his being faithful to the ideological stand of AL.
In the Presidential election of 1996, Ruling AL moved with former Chief Justice Shahabuddin Ahmed, a non-party personality who was also the Acting President of the Care-Taker Government of 1991 installed on the basis of tri-partite alliance, and he was elected unopposed as opposition BNP did not set my candidate.
Abdur Rahman Biswas so long be was in office, he did not budge a single inch from his stand to support the Ruling BNP under all the circumstances. Even at the peak of national crises in the 1994-96 he stood as a real political President for the ruling BNP. During the military crisis in 1996 when he was the President of the first non party, neutral care taker Government installed through 13th amendment he handled the issue on his own without having talks with the Chief Adviser Habibur Rahman Shelley, the first retired Chief Justice of Bangladesh who held the office after the coming into effective of the Constitution (Thirteenth Amendment) Act of 1996. The Chief Adviser then officially told the nation that he was not aware of what was happening in the cantonment and what steps the President was taking to bring the situation under control. He was, truly speaking, the PM’s President
.
Why did Prime Minister Hasina, who is now also the President of the ruling Awami League, chose non party Justice Shahabuddin as president? It might have come out of her considerations that
(1) Hasina-Government with non-party Justice Shahabuddin as the President shall be more credible and acceptable both at home and abroad;
(2) Justice Shahabuddin Ahmed is not outside the fold of Bangladesh nationalism as opposed to Bangladesh nationalism being propagated by BNP; and
(3) Justice Shahabuddin Ahmed appears equally respectful to the father of the nation Bnagabandhu Sheikh Mujibur Rahman as well as the war of liberation led by Awami League.
To our utter surprise, Prime Minister was so desperate in her move to convince Justice Shahabuddin Ahmed to become the head of state that she did not hesitate even to tell him that if he did not accept her offer to become the President she would go on a hunger strike in front of his residence at Dhanmondi. The Prime Minister herself disclosed this while delivering a speech at a civic reception in New York in October, 1996 during her first ever official visit to USA after becoming Prime Minister.
Therefore, whatever Justice Shahabuddin’s considerations had been, in the PM’s equation Justice Shahabuddin was considered to be a great necessity for her government.
Further, article 50(2) that reads: “No person shall hold the office as President for more than two terms, whether the terms are consecutive or not’ gives birth to a further proposition that if a President is willing to be reelected, he shall under all circumstances have to leave an impression to the party which shall back him again, that his role as the President was positive for the party as well as the country. President Abdur Rahman Biswas, it was in the air in 1996, was tempted with an offer by the ruling BNP that he would be reelected provided he continues to stand by the BNP. It appears from the behavior of the political parties that in future, too, the same practice will continue in case of any Presidential candidate. Such kind of desire/temptation in the mind of a sitting President carries a great risk of his being too much loyal to the party/coalition that voted him to the presidency, which is a direct threat to the neutrality if article 58C(6) becomes operative.
Article 58C (7) (D) is also negated by article 58C (6) because the constitution does not contain anything about the maximum age limit of a President. So, if the sitting President is above 72 Years of age, he will continue accordingly. Clause (7) (C) is also put in question clause (6) because there is a constitutional scope for the sitting President to be nominated again by the same political party, provided the party is voted to power again, to contest in the next Presidential race. Article 58B (2) and (3) appear redundant if article 58C (6) be operative. Since the offices of the President and of the Chief Adviser having been in the single hand together forms a frame of two-in-one.
Article 58C (5) has a risk to die down naturally; because reality shows that to find out a citizen without any political affiliation having consensus of major political parties-who are, strictly speaking, diametrically opposed to one another even on an insignificant issue- is an impossible move for the President. It will just waste time, energy and money involved in the process.
Not only this. President has a risk of being misunderstood or branded by a group/ groups, political party/political parties as a partisan for showing favor for or inclination towards a particular group which can make the situation politically complicated.
Curiously enough, articles 58C (5) has also a risk to be misused or swallowed by article 58C (6); because a President with a high political profile may be swayed by a political motive to assume the office of Chief Adviser and in such a situation he shall open a dialogue, keep the political leaders busy in the so-called dialogue process and at the fag end of the constitutional time-frame of 15-day apply article 58C (6) accordingly.
Article 58C (11) that states: “The Chief Adviser shall have the status, and shall be entitled to the remuneration and privileges, of a Prime Minister, and an Adviser shall have the status, and shall be entitled to the remuneration and privileges, of a Minister” is a confirmation to the remuneration that non-party, neutral government was modeled after the sprit of parliamentary system of government. It is on record in history that BNP law makers in the 6Th parliament, widely called elections to parliament without voters/ without-voters elections to parliament, did not invest enough time behind the 13th amendment; it was drafted, placed in parliament and passed in a haste in the face of the climax of the 24-month long stand-off that virtually brought the country to the verge of ruination. The spirit and concept of non-party, neutral caretaker government must be maintained, defended, ensured under any circumstances as it has not come out of a vacuum rather it has a long background of emergence.
Therefore, in the event of the operation and functioning of the constitutional provision (6) of the Article 58C, the immediate question remains open before the nation is the impact of it on the political scenario of the country keeping the upcoming elections to the 8th parliament in the right perspective. Now the logical question is, why should the nation afford article 58C (6) when it made no small sacrifice to establish the concept of a non-party, neutral caretaker government?
So the recommendations are:
1. Let the texts of the article 58C (6) be replaced by “if the provisions of clauses (3), (4) and (5) cannot be given effect to, the sitting Chief Justice of Bangladesh shall assume the office of the Chief Adviser of the Non-party Caretaker Government.” In this connection 11th amendment to the Constitution shall be a guide; and
2. (2). It is better to drop Article 58C (5) as it does not suit any purpose under the ongoing confrontational politics largely based on the politics of no confidence, mutual or collective or otherwise.
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