6 -13 May 2011, Dhaka Courier
There is no denying the fact that the country is faced with a very frustrating political landscape emanating from the resultant feedbacks of the exercises of gymnastics of the clauses (3), (4), (5) and (6) of Article 58B in particular that deal with the appointment in sequence from last past chief justice to next last past Chief Justice to last retired Judge to next last retired Judge of the Appellate Division of the Supreme Court of Bangladesh to the office of the Chief Adviser of Non-party, Neutral Care-Taker Government and therefore, more important is that without a delay these have to be addressed with a great attention, caution and priority upholding vision and mission of the Constitution(Thirteenth Amendment) Act, 1991 before the re-visit and operation of next Non-Party CTG in 2014.Therefore, to suit the very purposes and having in mind the ongoing dialogues initiated by Parliamentary special committee for constitutional amendment suggestions as follows may be taken into due weights and considerations.
Notwithstanding any logic or emotion perceived or held by any shade of opinions, political or otherwise, it is better to plunge the sub-clauses (3), (4), (5) and (6) of Article 58B from the Constitution, In fact, increase of age 65 to 67of the Judges of Supreme Court has put the clause (3) in a very unfortunate political controversy as a result of which Chief Justice KM Hasan had to decline to take over in the face of the serious opposition from AL and others in October, 2006 [atten. to my article ‘Hasan Dilemma: Constitutional or Political?’ ,Daily Star October 07, 2006 ], clause (4) has been made controversial with conflicting interpretations largely practiced, and being practiced by the jurists from two major political parties [atten. to my article ‘Whose Court the Ball lies’, 23 October 2006, Daily Star ] while clause(6) has been an object of criticism since its coming into operation and continuance from 29 October 2006 to 11 January 2007 setting aside constitutionally, inter alia, the very spirit of the CTG[atten. to my write-up ‘Article 58B [6]: Aladdin’s Lamp?’, Daily Star, November 25, 2006] making useless markedly Articles58B (1), 58C (3) read with 58C (7)and 61 with a further extra-constitutional proliferation to army-backed Fakruddin-led CTG from 12 January to 29 December 2011.
Even during the dialogues with the Parliamentary special committee for constitutional amendment most of the past chief justices, legal experts, lawmakers and political leaders recommended not to appoint retired Chief Justice or retired Judge of the Appellate Judge of the Supreme Court of Bangladesh as Chief Adviser of CTG. Pro-BNP leaders of the Supreme Court Bar Association echoed the same at a press on May 1, 2001[Cancel system of appointing last retired CJ as chief adviser, May 2, 2011, Daily Star]
Another convincing point in support of scraping the clause(6) is that it shall give birth to a very perplexing political landscape if Article 54 becomes operative during the period of the operation and continuance of CTG as the article reads: ‘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’. It is a further negative scene in our parliamentary democracy that since 1972 no speaker from Malek Ukil to the incumbent Advocate Abdul Hamid---because of the common allegation by the oppositions that speaker fails to establish his impartial image for his maintaining strong link, covert or overt, with the majority party/coalition in Parliament that nominated and voted him to the office-- -has been able to enjoy the confidence of the opposition in Parliament [Atten. to my article ‘What if Article 54 becomes operative?’, Daily Star, November 18, 2006]. So, a new political crisis is sure to be born here. It is best for all to stop here at the outset.
One may even argue in favor of retention of yet to be tested sub-clause (5) but reality here in Bangladesh speaks very rough and tough. Because such novel clause (5) stating— 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 a citizen of Bangladesh who is qualified to be appointed as Adviser--- cannot under the prevailing diagonally opposed political stands of two leading parties--- Awami League and Bangladesh Nationalist Party along with their alliances---have any mere chance to see the light of the day, It was seen in 2006 how President Iajuddin having been locked in a circular polemics and debates of the two parties on the determination of a constitutional choice as Chief Adviser jumped to clause (6) before the application of clause (5). There may on it be a series of focuses entailing talks, debates, writings and researches both at constitutional and non-constitutional levels; nonetheless, reality is reality that requires to be judged realistically on a balance of theory and practice.
During the meeting with parliamentary special committee for constitutional amendment on 27 April 2011 in Jatiya Sangsad Bhaban Prime Minister Sheikh Hasina also President of ruling AL,, who led a 12-member delegation to the talks, made few proposals and, later, at a media briefing in Gonobhaban, the official residence of the premier, she disclosed the details. One of the AL’s proposals as alternatives to former CJ-headed CTG under clause (3) and (4) is to introduce a system of forming a 10-member advisory council to an interim government—five from the treasury bench and five from the opposition bench of the parliament. And these 1ten members will select a chief adviser consensually from among themselves. It further says that every time care-taker government is formed, it will be formed on the basis of discussions among ruling and opposition parties in parliament; how many advisers will come from which party might depend on a party’s strength in parliament.
Analyzed and judged carefully it is interesting to conclude that the above proposals rotate virtually around the clause (5) and knowing it very well that such model can hardly work in reality, Hasina expressed skepticism about her own proposal forming caretaker government based on consensus, as the main opposition BNP neither nominated its MP to work in the special committee nor did it join the talks with the committee. If it is so, then what and where is the acceptable, realistic proposal of AL on this most flaming question of the day?
On the other hand, BNP;’s stand has been vented to the media in various manifestations entailing talks by leaders with the Protham Alo on 29 April, 2011.In general such stands include its stick adherence to the clause (3) and (4) provided there shall be no violation of or departure from the principle of seniority in the appointment of the Chief Justice i.e. the senior most Judge of the Appellate Division of the Supreme Court shall become chief justice.; it does not refer much to clause (5) and (6).It is better to go for a constitutional provision amending Article 95(1) rather than to depend on a convention, which has become an object of chronic assaults and batteries by the governments, past or present, mostly to fit the purposes, political or otherwise.
One thing is very much clear from both stands of AL and BNP that both are convinced about the necessity of possible amendments to remove the anomalies and strike a balance from the point of view of practicability and acceptability. But alas! they cannot sit together because of their so-called antagonism, intolerance, disregards, disbeliefs and suspicions leading cumulatively to the point of no return approach to each other, whatever the costs of casualties and wounds might be on the people and the country.
So, keeping all the facts in true perspective, let there be a new clause (2) under Article 58B as follows with the words:
‘If/when parliament is dissolved anytime before expiration of its term or stands dissolved by reason of expiration of its term, the Chief justice, or in his absence, the senior most judge of the Appellate Division of the Supreme Court of Bangladesh available shall under Article 58B(1)take over as Chief Adviser of the non-party, neutral caretaker government; and then, the date on which a new Prime Minister enters upon his/her office after the constitution of parliament, he/she shall revert to his/her office of the chief justice or Judge of the Appellate Division of the Supreme Court of Bangladesh’.
Here careful, valued and time-beyond attention may be drawn to the two landmark constitutional provisions one is the President (Discharge of Functions) Act of 1969, India and other being the Constitution (Eleventh amendment) Act of 1991, Bangladesh. In a brief these are:
In 1969, VV Giri, Acting President of India, decided to take part in the electoral race to the presidency of India but to do so, according to the constitutional provision, he had to resign from his office of the Acting President of India. There arose an acute problem because Giri, then Vice-President, was discharging functions as Acting President on the sudden death of President Zakir Hossain; therefore, resigning the office of Acting President under this circumstance means both the offices of the President and Vice President fall vacant simultaneously and it gave birth to a constitutional question that who should succeed the Acting President in absence of any constitutional provision therein. Indira-Administration acted promptly. Parliament by an enactment made a provision for the discharge of the functions of the President holding that----When vacancies occur in the offices of the President and of the Vice-President simultaneously, owing to removal, death, or resignation of the incumbent or otherwise, in such an eventuality, the Chief Justice or in his absence, the senior most Judge of the Supreme Court of India available discharges the functions of the President until a newly elected President enter upon his office or a newly elected Vice President begins to act as President under Article 65 of the Constitution, whichever is the earlier.
Then after resignation of Acting President VV Giri following this Act, Hidayadtullah, then Chief Justice of India, took over as Acting President being ex-officio Chief Justice of India for a brief period from 24 July to 24 August, 1969 who reverted to his position of the Chief Justice of India the day on which the newly elected president entered upon his office.
In Bangladesh perspective, on 6 December 1990, unlike his distant predecessor Chief Justice ASM Sayeem in 1976, Shahabuddin Ahmed, then Chief Justice of Bangladesh, took over sans any constitutional provision as Acting President of Bangladesh from HM Ershad, then President of Bangladesh, following the seven points consensus formula agreed upon among the political parties, both ruling and opposition, in Bangladesh. Justice Shahabuddin accepted the offer on condition of reverting to his original office of the Chief Justice of Bangladesh the day on which a new President should enter upon his office and later, accordingly, such provision was made by this eleventh amendment to the Constitution. It amended the fourth schedule to the constitution by adding a new paragraph 21 thereto which legalized the appointment and oath of Shahabuddin Ahmed, Chief Justice of Bangladesh, as the Vice President of the Republic and the resignation tendered to him on 6 December 1991 by the then President HM. Ershad. This Act ratified, confirmed and validated all the powers exercised, all laws and ordinances promulgated, all orders made and acts and things done, and actions and proceedings taken by the Vice President as Acting President during the period between 6 December 1990 and the day (9 0ctober 1991) of taking over the office of the President by the new President Abdur Rahman Biswas, duly elected under the amended provisions of the Constitution. The Act also confirmed and made possible the return of Vice President Shahabuddin Ahmed to his previous position of the Chef Justice of Bangladesh.
Both the Acts in their respective scenario felt and recognized the necessity and importance of the use of Chief Justice or in his absence, senior most Judge of the Supreme Court, but a difference lies on question of such person’s being retired and not retired. When the office seeks a sitting one, condition precedents are marginal; it is evident in case of the above mentioned acts of India and Bangladesh. But when it seeks a retired one, condition precedents are substantial having number of clauses and sub-clauses in addition that happened in case of the Constitution (Thirteenth Amendment) Act, 1996 in Bangladesh. Above all, the carnal point is that the spirit and appeal of the these Acts of India and Bangladesh are same in nature, vision and mission and from this point of view re-thoughts on the use of ‘Chief Just, not past retired Chief Justice or in his absence senior most Judge, not last retired Judge of the Appellate Division of the Supreme Court of Bangladesh is indeed an unqualified, undisputable call of time.
What is alluring to note is that while India thought of appointing its sitting Chief Justice or in his absence the senior most Judge of the Supreme Court of India as Acting President in case of the vacancies of the offices of both the President and Vice President of India in May 1969, Bangladesh first put the same in her perspective with a presidential rule in December 1990, and then under a parliamentary system made constitutional provisions in 1996 to appoint last retired Chief Justice or in his absence last retired Judge in sequence of the Appellate Division of the Supreme Court of Bangladesh as Chief Adviser[Head of Government with the status, remuneration and privileges of a Prime Minister under article 58C(11)]of its on-Party, Neutral Care-Taker Government.
Interestingly enough, Article 58C(2) reads: ‘The Chief Adviser and other Advisers shall be appointed within 15 days after parliament is dissolved or stands dissolved, and during the period between the date on which parliament is dissolved or stands dissolved and the date on which the Chief Adviser is appointed, the Prime Minister and his/her cabinet who were in office immediately before parliament was dissolved or stood dissolved shall continue to hold office as such’ that has virtually created two sets of interim governments a. One is a party-run, non-elected interim government with the Prime Minister and Council of Ministers who were in office immediately before dissolution of parliament with a view to giving the President 15 days time to make a person available for the office of the Chief Adviser pursuant to article 58B (3), (4), (5) and (6) in succession; and b. other being a non-party, neutral and non-elected interim government known as non-party, neutral caretaker government with a Chief Adviser and ten advisers aimed at ensuring a congenial atmosphere for holding free and fair elections to parliament conducted by the Election Commission independently.
So, the questions are:
a. When it is constitutionally decided as to who shall be Chief Adviser of non-party, neutral CTG pursuant to article 58b (3), (4), (5) and (6) in succession then what is necessity to go for a "stopover" party-run interim government? Why shall the fifteen out of ninety day’s timeframe be wasted as such? Isn't it redundant, illogical?
B.It is also not clear that how many days or how much time out of the fifteen days timeframe President shall use for each of the sub-clauses? Such questions shall automatically wither away with the insertion of the new clause (2) of Article 58B. [Atten. to my Article 58C [2]: Provisions for two caretaker governments?, Daily Star October 14, 2006]
The nation still recall how Chief Justice Latifur Rahman even before his becoming the Chief Adviser of the second Non-Party, Neutral Care-Taker Government in 2001 did his ground work to make a list of advisers and reset the administration of past party-run government having a residence at the Mintu Road. It passed a message to all that the Chief Adviser should have time to fix everything before his formal appearance.
Therefore, the amended Article shall be: ‘The Chief Adviser shall be appointed seven days before parliament is dissolved or stands dissolved, and during the period the Chief Adviser without any political bias chooses and sets, subject to Article 58C(7), the Advisers who shall be appointed by the President and complete all the necessary things required to run the CTG’.
There cannot be any revival of the immediate past political government in the event of the CTG’s failure to do its constitutional functions within the time limit of ninety day (as proposed by AL during its dialogue with the Parliamentary Special Committee for Constitutional Amendment). If such a situation ever occurs, it can only be compensated by giving further time frame only. In fact, CTG can never be successful if the political parties are not determined and sincere to take part in elections to parliament. It must be recalled again and again that CTG is a constitutional answer to a party-run- government; hence a party-run-government cannot be a further constitutional answer to the failure of CTG. Only solution under such unfortunate eventuality is the continuance of CTG, CTG and CTG, which is better than anything else. In such a given situation Article 106 may aptly be applied and a constitutional provision may be made to the effect that: ‘At the backdrop of a failure of CTG to ensure a free and fair atmosphere for holding a general election to parliament with the time frame of ninety days and the situation arising there from, President shall, under Article 106, seek an opinion from the appellate division of the Supreme Court, and act thereupon’.[atten. to my article ‘President’s use of Article 106:Necessity,limitations and no-limitations, Daily Star, 4 November 2006].
There is no guarantee that, under the given circumstances, a revived immediate past party-run government following the failure of a non-party CTG shall be in a position to create a free and fair atmosphere for holding a general election to parliament. Failure of a CTG or of revived party-run government, if Hasina’s proposal is accepted, in such situation or stalemate may pave the way for extra-constitutional grabbing of power with a great logic of maintaining law and order for the greater interests of the country having on hands the oft-quoted doctrine of necessity or of efficacy or the both. Who shall save democracy if we are not matured enough to do so? Why should we speak ill of others if we are not careful of our own ills? Mere insertion and retention of a constitutional provision against grabbing of power cannot be a guard against any extra-constitutional grab of power backed by the oft-quoted doctrine of necessity or of efficacy or the both together, or applying the principles of inductive logic based on a. law of the uniformity of nature and b. Law of causations or using the Islamic shariat maxim [of course, in a very restricted and guarded sense and manner] ‘necessity makes prohibited things permissible’. Speaking realistically, such an unfortunate event does not take place even by chance; rather it is blessed with so many factors covering crises from various sources having various modes, spaces and dimensions pre-dominantly with the most chaotic, conflicting political stand-off in the lime light. Democracy with strong institutions, both political and otherwise, may mostly act as a threat to such an unwarranted emergence.
Apart from these, to run the Non-Party, Neutral Care-Taker Government smoothly and effectively, there needs a practicable, qualified and sustainable balance of powers and functions between the President and the Chief Adviser focusing, inter alia, on Articles 58D (1), 58E, and 61 between President and Chief Adviser of Non-party, Neutral Care-Taker Government. To suit the very purposes, Article 58E is to be laid down as: "Notwithstanding anything contained in Articles 48(3) in 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 shall be ineffective in few demarcated areas only’. Such demarcated areas shall be decided by Parliament ‘and once these demarcated areas are settled, logic for the continuance of Article 58D (1) stands no more.[atten. to my article’ Powers of President and Chief Adviser’, Independent 07 July 2000]
Under 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). Here President has been given ‘exclusive jurisdiction” to deal with the matters related to defense and it was seen how President Abdur Rahman Biswas in 1996, applying this very Article, handled the military crisis in his own way without having any consultation with the Chief Adviser Justice Habibur Rahman during the functioning of the first non-party, neutral CTG after the 13th amendment came into being.
How does it sound that a head of the government in the name of “routine functions” has constitutionally been debarred from even knowing the causes of military crisis that could also have toppled his civilian government? No repetition of such experience is desirable any more.
Therefore, restructured and redefined Article 61 may be: ‘The president shall, during the period in which there is a non-party CTG under Article 58B, decide the matters related to defense services in consultation with the Chief Adviser’. The very theme may also be covered within the fold of demarcated areas and, if so happens then continuance of Article 61 shall also unnecessary.
Question of holding elections to parliament in case of or in the wake of war or external aggression during the operation of CTG does not arise at all.
Therefore, Article 72(2) needs to be restructured as saying that----
‘President's summoning of the dissolved Parliament in case of or in the wake of war or external aggression shall follow the formation of a national government headed by the immediate past Prime Minister with/ proportionate representations of the opposition parties in the dissolved parliament’’.
Let there be a light everywhere so that we may raise our heads high in pride, not hung down in shames even in the face of any challenge, constitutional or political or otherwise.
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