Constitution and President: Question of amending Article 48(3)

Sinha MA Sayeed

IT is surprising to note that our Constitution contains a unique, unprecedented chain of rise and fall of the powers and functions of the President of the People's Republic of Bangladesh, which are as follows:

1. President following article 48(3) remains a weak President under the parliamentary system of government reintroduced by the 12th amendment;

2. He then becomes a strong President pursuant to articles 58B(2), 58D, 58E and 61 after the dissolution of parliament followed by the instantaneous operation of non-party, neutral caretaker government initiated by the 13th amendment;

3. He further becomes the strongest President with the functioning of article 58C(6) during the caretaker government;

4. And following article 58B(1) he finally goes back to his original weak position under the parliamentary system the date on which a new Prime Minister enters his/her office after the constitution of new parliament arising from elections. It is also beyond doubt to say that the rise and fall of the powers and functions of a President under such diametrically opposing frames can hardly escape a far-reaching effect on the very mindset of the person who experiences this unique taste of the musical chair of power. Is it just, fair and reasonable politically and constitutionally?

Of all these four frames our concern is frame no-1 that puts 48(2) subject to article 48(3), which virtually makes article 48(2) meaningless, or to say mildly, insignificant in its totality. It, to speak the truth, takes him to the position of a zero-powered President less than a titular President].

It is on record in our politico-constitutional history that since the reintroduction of parliamentary system in 1991 no President, partisan or non-partisan, has consequently been able to show his excellence in playing a role in time of a crisis, political or otherwise.

Knowing fully the constitutional limitations of the President both Sheikh Hasina -- leader of the opposition in the fifth and eighth parliaments -- and Khaleda Zia -- leader of the opposition in the seventh parliament -- moved seriously to their President urging to play a role to put an end to the arisen stalemate. Surprisingly enough, while sitting in the chair of the Prime Minister [Khaleda Zia from 1991-1996 and again from 2001-2006 and Hasina from 1996-2001] both of them played the same flute on the same tune reminding the nation that 'Constitution does not allow the President to deal on his own with any crisis, political or otherwise, at all.'

Therefore, it is a call of the time, call of the people of various shades and dimensions that the office of the President must constitutionally be illuminating, responsible and responsive in its overall weighing. I hinted in my last article titled 'For a President who can take an initiative' published in The Daily Star on 14 July 2007 that to create a balance of powers between President and Prime Minister in our existing parliamentary system article 48(3) needs to be amended accordingly by reducing the powers of the Prime Minister in certain areas.

Therefore, the following recommendations may now be forwarded as a necessary follow-up to suit the very purposes:

a. Prime Minister shall not prepare and send a panel of his/her sole choice for any constitutional post to the President; instead, there shall be a commission to deal with matters related to appointment to constitutional posts and President shall appoint such persons in consultation with the Prime Minister.

b. President shall in case of a crisis or necessity use article 106 with or without consultations with the Prime Minister provided the party/coalition-in-power has failed to address the situation, political or otherwise, within the timeframe of, say, 30 to 45 days.

c. President shall have 10 per cent reserved quota in the administration which he will fill in consultation with the Prime Minister with qualified, experienced and honest persons, and 10 per cent quota in the cabinet which he fill, with or without consultation with Prime Minister, with qualified, honest and non-partisan persons.

d. President being the Commander-in-Chief of the armed forces shall meaningfully be consulted regarding appointments, transfers and promotion of the officers not below the rank of brigadier or equivalent.

e. President's speech in Parliamentary shall not be a mere reading of the traditional pattern of so-called official statements made by the party/coalition in power following the traditional model of speech from the throne' in the parliamentary system of government in United Kingdom. Therefore, constitutional provisions shall be made to the effect that there shall be a core team, independent of party/coalition in power, in the President's secretariat to deal with President's speeches reflecting the real scenario of an issue or event in the country as and when required.

Former President Shahabuddin Ahmed made on his own such daring attempts on a number of occasions, but he hardly coped with the Hasina administration because of absence of any such convention or legal support.

f. Appointments, transfers and promotions of high commissioners/ambassadors shall not be the sole domains of the Prime Minister; rather these shall be made through meaningful consultation with the President.

h. There shall be a constitutional provision in place of the existing so-called tradition [because neither Khaleda Zia nor Sheikh Hasina followed this strictly while in power] that Prime Minister shall call on the President on the last Thursday of every month and thus keep him informed of the overall up to date activities of the government.

i. Above all, a Constitution Commission needs to be constituted to look into details to devise a practicable, up to date frame of balance of powers between President and Prime Minister in our parliamentary system of government giving due attention to Bangladesh perspective.

Sinha MA Sayeed is a faculty member of Newcastle Law Academy.