25 November 2006, Daily Star
1 December 2006, PROBE
Literature contains two forms of expressions, one is prose, the other being poetry; constitution follows the former and the expression of article 58C (6) has articulately been made so saying:
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 the Chief Adviser of the Non-Party Care-taker Government in addition to his own functions under this constitution.
The phrase - Notwithstanding anything contained in this chapter- apparently makes article 58C (7) inoperative, article 58B (2) meaningless and article 48 (3) insignificant while the rest of the writings in the clause are, more or less, related to the functions of the Chief Adviser to the non-party, neutral caretaker government.
To have a full grasp of such bearing of the above analysis, the clause may also be transformed into the following poetic expression:
I am article 58C (6)
There is none to dispute me
I am above
Article 58C (7)
No other clause or sub-clause
Binds me as well
I am article 58C (6)
Having two caps together
One of President, other of Chief Adviser
With the operation of article 54
Number may also increase to three
Crossing the boundary of accountability
Following article 58B (2)
I have risen to the height
Encompassing everything, all;
Article 7?
Hardly does touch me even.
Truly speaking, the debut constitutional and political experiment of Article 58C (6) has proved to be a dangerous exercise because of its immediate negative feedback on the democratic political culture in Bangladesh. It has, in practice, manifested itself as Aladdin’s lamp in the hands of President-cum-CA professor Iasjuddin who has meanwhile by a number of measures and steps proved himself confused, puzzled as to what to do, when to do and how to do.
President-cum-CA professor Iasjuddin perhaps is not in a position firmly to bear the unique, unprecedented sparkling of the weight of article 58C (6); it is neither possible on the part of a person even being in the highest office of the country to move arithmetically and geometrically having two caps on head. Out of such peculiarity of newly emerged position he might have made a mistake by branding his government a kind of presidential in nature; on the other hand it is also a fact that the government now under him is neither presidential nor parliamentary, rather it is a centralized administration in the hands of a single person known as President-cum-CA, which is not understandable even to a student of politics/political science or of law. It may be a source of research to political scientists and thinkers in future.
And therefore, it is an outright rejection to the concept and spirit of the spirit of the non-party, neutral caretaker government introduced by 13th Amendment to the constitution, which, of course, has been devised in the wake of chronic mistrust and doubt of political parties to each other and one another.
During the period of June and July in 2000, I wrote a series of articles on the 13th Amendment to the constitution, which were published in The Independent, a national Daily in English-language. In one of the articles titled: The Spirit of Caretaker Government- focusing mainly on article 58C (6) I made a logical analysis to show that what would be the consequences if this sub-clause be operative even under President Justice Shahabuddin during the functioning of second caretaker government in 2001.
Even the possibility of the operation of Article 54-- if a vacancy occurs in the office of President or if the President is unable to discharge the functions of his office on account of absence, illness or any other cause, the Speaker shall discharge those functions until a President is elected or until the President resumes the functions of his office, as the case may be---anytime during the functioning or in particular, during the ongoing functioning of Article 58(6) cannot be set aside at all.
I t is not beyond any suspicion that President-cum-CA has taker over burden on his shoulders either forgetting his overall physical fitness following the recent operation in Singapore or setting aside so, unwillingly or u8nwillingly,.If there is any sort of catastrophe in the health of the President-cum-cain that case he has no better choice but to go for a bed-rest or he may upon advice by a medical board be disqualified to continue discharging his functions any time. If such scenario develops automatically without any design by any quarter then option for the office shall go to the Speaker under article 54.If there is any hidden design to invite such reality otherwise, option is again for the Speaker under the same article.
Syed Badrul Hasan, a leading columnist, wrote: 'The health of the President and the health of the country somehow does not allow us to think that Iajuddin Ahmed can handle all these jobs all by himself. And if he cannot, there arise the very grim specter of what unknown and fearsome course the country might take should he falter. The Speaker of the just-dissolved Jatya Sangsad, we have been told on good authority, has had to hold a planned tour abroad in abeyance'(7 November 2006, Daily Star).
Here a question may arise: Will the Acting President Jamiruddin also be discharging as Acting Chief Adviser to the non-party, neutral caretaker government? The logical proposition, if not decided otherwise, is, yes.
After such arrival of the Speaker as the Acting President-cum-CA, the political landscape may be upset abruptly because of the direct partisan involvement and role of Speaker, a BNP-grown politician. Speaker Jamiruddin Sircar has already exhibited his sense of climax as a non-neutral partisan Speaker in the eighth parliament. It is very difficult to convince oneself that the political situation shall then not be rapidly deteriorating one as a result of which holding of elections to the ninth parliament may be more challenging or even not be possible also. Under such circumstances 90 days time limit of the caretaker government has further possibility to go beyond provided all the major political alliances shall be of the same mind to do so, otherwise parliamentary democracy in Bangladesh may have a reversed course to move.
The recent exercises of the gymnastics of options of (3), (4), (5), (6) and jumping from (3) to (6) without proper application of (4) and showing a total disregard to (5) further tells the nation that had there been no option of (6), president could not have emerged as President-cum-CA. Political leaders, constitutional experts, lawyers, intelligentsia and professional groups of various shades of background have meanwhile registered their strong voice against existence and continuance of the sub-clause for the sake of smooth running of democracy and non-party ,neutral caretaker government
It is surprising to note that there has been created a unique, unprecedented chain of rise and fall of the powers and functions of the President of Bangladesh that shows:
A( President, following article 48(c) in particular remains a weak president under the parliamentary system of government reintroduced by the Constitution(Twelfth Amendment) Act of 1996;
b)He then becomes a strong president pursuant to articles 58B(2),58D,, 58E and 61 in particular after the dissolution of parliament followed by the instantaneous operation of Non-Party, Neutral Care-Taker Government initiated by the Constitution(Thirteenth Amendment) Act of 1996;
C). He further becomes the strongest president with the functioning of article 58(6) during the caretaker government;
d). And following article 58B(1), he finally goes back to his original weak position of parliamentary system of government the date on which a new Prime Minister enters his/her office after the constitution of Parliament.
There is no denying the fact the rise and fall of the powers and functions of a President under such diametrically opposing four frames can hardly escape a far-reaching effect on the very mindset of the person who experiences this very taste of the musical chair of power. Consequently, it may be a difficult task for him to continue mathematically with the next immediate newly installed parliamentary form of government. Is it just, fair and reasonable politically or constitutionally or the both in true perspective of the non-party, neutral caretaker government?
Therefore, recommendations, which need a further amendment by Parliament, are:
1. Sub-clauses (3) and (4) may be kept intact while sub-clause (5) shall be dropped; sub- clause (6) is to be amended and replaced with the following paragraph---
If/when parliament is dissolved anytime before expiration of its term or stands dissolved by reason of expiration of its term, the sitting chief justice of Bangladesh, pursuant to article 58B (1) will take over as Chief Adviser to the non-party, neutral caretaker government; and then, the date on which a new Prime Minister enters upon his office after the constitution of parliament, shall, accordingly, go back to his original office of the Chief Justice of Bangladesh.
Here the spirit of the 11th Amendment to the constitution of Bangladesh and of the reference to the Successive Act in the Constitution of India may duly and relevantly be utilized; or
2. Sub-clauses (4) and (5) shall be dropped; sub-clause (3) shall continue and (6) shall be amended and replaced as mentioned above; or
3. Sub-clauses (3), (4), (5) and (6) in the article 58C shall be dropped in toto/full and a new amended provision of (6) as mentioned above in 1 shall be provided accordingly.
Even the possibility of the operation of Article 54-- if a vacancy occurs in the office of President or if the President is unable to discharge the functions of his office on account of absence, illness or any other cause, the Speaker shall discharge those functions until a President is elected or until the President resumes the functions of his office, as the case may be---anytime during the functioning or in particular, during the ongoing functioning of Article 58(6) cannot be set aside at all.
I t is not beyond any suspicion that President-cum-CA has taker over burden on his shoulders either forgetting his overall physical fitness following the recent operation in Singapore or setting aside so, unwillingly or u8nwillingly,.If there is any sort of catastrophe in the health of the President-cum-cain that case he has no better choice but to go for a bed-rest or he may upon advice by a medical board be disqualified to continue discharging his functions any time. If such scenario develops automatically without any design by any quarter then option for the office shall go to the Speaker under article 54.If there is any hidden design to invite such reality otherwise, option is again for the Speaker under the same article.
Syed Badrul Hasan, a leading columnist, wrote: 'The health of the President and the health of the country somehow donot allow us to think that Iajuddin Ahmed can handle all these jobs all by himself. And if he cannot, there arise the very grim specter of what unknown and fearsome course the country might take should he falter. The Speaker of the just-dissolved Jatya Sangsad, we have been told on good authority, has had to hold a planned tour abroad in abeyance'(7 November 2006, Daily Star).
Here a question may arise: Will the Acting President Jamiruddin also be discharging as Acting Chief Adviser to the non-party, neutral caretaker government? The logical proposition, if not decided otherwise, is, yes.
After such arrival of the Speaker as the Acting President-cum-CA, the political landscape may be upset abruptly because of the direct partisan involvement and role of Speaker, a BNP-grown politician. Speaker Jamiruddin Sircar has already exhibited his sense of climax as a non-neutral partisan Speaker in the eighth parliament. It is very difficult to convince oneself that the political situation shall then not be rapidly deteriorating one as a result of which holding of elections to the ninth parliament may be more challenging or even not be possible also. Under such circumstances 90 days time limit of the caretaker government has further possibility to go beyond provided all the major political alliances shall be of the same mind to do so, otherwise parliamentary democracy in Bangladesh may have a reversed course to move
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