President is not as symbolic as being perceived

01 November 2008, Daily Star

A sense of perception is on in a full swing in the minds of the people-- politicians, businessmen, media persons, bureaucrats , intelligentsia and working class of various nature and dimensions and foreigners--- in the country and, particularity, it is more acute in and around the office of the President of the Republic that the president even during the operation of a Non-Party, Neutral Care-Taker Government pursuant to the Thirteenth Amendment to the Constitution has noting to do but to go to a graveyard, offer munajat and to attend a milad mahfil—a Muslim religious festivity that is observed for the salvation of a departed soul or for any other reason(s0 seeking blessings of Allah-- that implies virtually the continuance of the concept of zero-power president under article 48(3) of the Constitution of Bangladesh as discovered by former President Justice Shahabuddin Ahmed. But such perceptions are not only wrong but also misleading in the fullest sense of the term.

The Constitution (Thirteenth Amendment) Act, 1996 contains an unambiguous allocation of power while dealing with the President, head of state, and the Chief Adviser, head of government, to the non-party, neutral caretaker government.

Article 58C(11) 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". This is a confirmation to the proposition that the non-party, neutral CTG was modeled on the spirit of parliamentary system of government

But power and functions of the Non-Party, Neutral Care-Taker Government are well defined and demarcated in the article 58B (3) that reads: "The executive power of the Republic shall during the period mentioned in clause (1) be exercised, subject to the provisions of article 58D (1) in accordance with the constitution, by or on the authority of the Chief Adviser, in accordance with the advice of the Non-party Caretaker Government".

On the question of the range and limit of such power and functions, article 58D (1) goes on stating: The Non-party Caretaker Government shall discharge its functions as an interim government and shall carry on the routine functions of such government with the aid and assistance of persons in the services of the Republic: and, except in the case of necessity for the discharge of such functions it shall not make any policy decisions

Therefore, Non-Party, Neutral CTG cannot go beyond the routine functions, which specifies the day to day routine functions of the government. It can deal with a policy matter only if it is a necessity. Hence, the possibility of clash between Chief Adviser and the President on the interpretation of routine functions may not be a marginal one for all the time, although the decision of the president shall prevail over that of the chief adviser in almost all the cases indeed

Article 58E reads: "Notwithstanding anything contained in articles 48(3), 141A (1) and 141C (1) of the constitution, during the period the Non-party Caretaker Government is functioning, provision in the constitution requiring the President to act on the advice of the Prime Minister or upon his prior counter signature shall be ineffective" .

More important is that the article 58B (2) contains: ‘The Non-party Caretaker Government shall be collectively responsible to the President’. A careful attention must be given to the fact that in absence of a Parliament, the President is the only elected personality who has been elected by the majority members of the immediate past Parliament and to whom CTG’s remaining responsible collectively means keeping the supremacy of electoral politics and process alive and ongoing. It is also very much logical that President should constitutionally enjoy such an ‘implied power’ so that he may even dismiss a CTG and appoint a new one, if he feels//thinks such a necessity to do so. Ground(s) may be a single one or many, which shall be decided by the President.

This power is not unfettered at all anyhow. Only a definite, particular circumstance may be a determining factor(s) with a due respect to the public opinion also. This acts as a kind of cheek and balance between President and Chief Adviser.

In case of a necessity, CTG is also authorized to touch upon a policy matter. Therefore, a simple question may arise: who is the authority to determine “such necessity”? Because determination of such necessity by the Chief Adviser has a risk of being set aside by the President with a different interpretation that ultimately may generate a deadlock in the administration.

Here President’s role is very important as a guardian of the Constitution and the decision of the President shall also be overriding.

Article 58E reads: "Notwithstanding anything contained in Articles 48(3), 141A (1) and 141C (1) of the constitution, during the period the Non-party Caretaker Government is functioning, provision in the constitution requiring the President to act on the advice of the Prime Minister or upon his prior counter signature shall be ineffective". This article pointedly made the President more powerful than the Chief Adviser, which cannot be thought of during the operation of article 48(3) with a Prime Minister as head of government in a parliamentary system of government.

Under the amended Article 61, ‘the supreme command of the defense services shall vest in the President and the exercise thereof shall be regulated by law (and such law shall, during the period in which there is a non-party CTG under article 58B, be administered by the President)’. It is also found that President has been given, “an exclusive jurisdiction” to deal with the matters related to defense and it was seen how President Abdur Rahman Biswas in 1996 without having a consultation with the Chief Adviser Justice Habibur Rahman exclusively handled the military crisis in his own way by applying this very article during the functioning of the first non-party, neutral CTG after the 13th amendment came into being

One may argue logically and pragmatically that the present government is not a mere Non-Party, Neutral Care-Taker Government, rather it is a defense forces--backed Non-party, Neutral Care-Taker Government, which is, truly speaking, a crisis government baked by the defense forces of the land. This type of government has no reference and relevance to political science and political studies any where in the world. It is a new form with a new color and flavor being within the range of the support of the people. It is neither set on the constitutional provisions of the thirteenth amendment to the Constitution nor is it resting on the parliamentary model introduced by the twelfth amendment to the Constitution. It is what it is, no more no less.

Notwithstanding anything it does, the constitutional standing of the President of the Republic still remains supreme from the point of view of power at least because of CTG’s official accountability to him that is unthinkable during the operation of a Parliamentary form of Government.

My relations with Professor Dr.Iasuddin are excellent because we belong to the same district of Munshigong and, moreover, when he was the Provost of SM Hall of University of Dhaka, I was its resident student. I still enjoy a kind of easy access to him and met him on many occasions at Bangabhaban. It is my understanding that because of his unique simplicity, generosity and non-pugnacious nature that he earned and practiced as a teacher as well as professional over the past forty years, President Professor Dr. Iasuddin Ahmed himself is also responsible, more or less, for giving birth to and continuance of the perception that he has nothing to do but to comply with the decisions of Fakkruddin-led Non-Party, Neutral CTG as he did with Khaleda Zia-led party-run government. From an orderly to almost all the top brasses in the office of the President all seem to have become habituated to treat the office as a non- pro-active in its entirety. The sooner the true realization comes; the better it is not only for the office of the president but also for us all.