Hasan dilemma: Constitutional or political?

7 October 2006, Daily Star

Article 58C, in particular sub clauses (1), (3) and (7) (b) markedly and unambiguously made the provisions for forming non-party, neutral caretaker government and provided required qualifications for becoming chief adviser and advisers accordingly.

There is no denying the fact that it is really the toughest task to cause happy marriage between constitutional provisions/arrangements and political crisis/crises. That's why effort and tolerance of the opposing parties have to be on to suit the purpose positively. It is on record in history that political needs paving the way for tailoring the constitution by way of amendment with or even without logic only giving weight to the sentiment or emotion or call of the people may be an unavoidable reality.

The present scenario concerning immediate past chief justice KM Hasan's assumption to the office of the head of the non-party, neutral caretaker government has been overheated, leading to complexities of compromise/reconciliation between or among the opposing political parties. Constitutional choice has been questioned from a political point of view; whether such political point of view is sustainable or not is likely to be depending on the proper, unbiased interpretation of Article 58C & 58C(7)(b) in particular. It is not so easy to go for any mutually rewarding constitutional arrangement/provision embracing the highly talked about and the most difficult opposing political views.

The moot point is what Article 58C clauses (1), (2) and (7)(b) say and for a ready reference there seems no option but to quote them from the pages of the Constitution: 58C(1) reads -- The non-party Caretaker 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.

58C(3) reads -- 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.

And for the qualification of an adviser Article 58C (7)(b) reads --

(7) The President shall appoint Advisers from among the persons who are not members of any political party or of any organization associated with or affiliated to any political party.

The burning question of the day centering immediate past Chief Justice KM Hasan, a possible constitutional choice as Chief Adviser to the next caretaker government, appears to have been put into this "trap of constitutional interpretations." Whether KM Hasan will be finally acceptable by the political parties, in particular, by AL is a matter of political dialogue between the parties concerned mainly between AL and BNP which has hopefully started now.

Meanwhile, as ill luck would have it, opposing views of BNP backed four parties alliance, and AL backed fourteen parties combine portend to tough stand on the respective interpretation of Article 58C (7)(b). Fourteen parties alliance warned that they would go for continuous strike all over the country subject to the ruling party's handing over power to KM Hasan as head of the caretaker government; the arguments and logic AL put forward are that KM Hasan was international secretary of BNP before his becoming a judge of the High Court and even as the Chief Justice he felt embarrassed to give any judgment on the killers of Bangabandhu Sheikh Mujibur Rahman. They further alleged that Justice Hasan was still having rapport with BNP persons. BNP led four parties alliance refuted such allegations as politically motivated. It is also very interesting to note that foreign delegations including European Union and NDI have spoken in favor of Justice KM Hasan's assumption to the office of head of the caretaker government, apparently siding with the first choice of interpretation of the Article 58C(7)(b).

Meanwhile as dialogue between the secretary generals of BNP and AL is on they are likely to be reaching a compromise formula on the basis of "give and take". There is a possibility that the compromise may be mutually rewarding which means that Justice Hasan will survive at the cost of Chief Election Commissioner Justice Aziz, who has been an object of worst type of criticism for his equally worst performance. If so, the first choice of the interpretation of Article 58C (7)(b) shall in the end prevail. If not so, the alternative is the Hobson's choice