The spirit of Caretaker Government

9 June’ 2000, Daily Independent

Constitutional provision for succession to presidency contained in article 50 (1) states: Subject to the provisions of this Constitution, the President shall hold office for a term of five years from the date on which he enters upon his office, provided that notwithstanding the expiration of his term the President shall continue to hold office until his successor enters upon office. Constitutionally, sitting president Shahabuddin Ahmed shall also, provided nothing happens otherwise pursuant to article 50 (1) of the constitution, continue as president during functioning of non party, neutral CTG and if then article 58C (6) becomes functional it is president Shahabuddin Ahmed who shall also be holding the office of chief advisor CTG.

If it really does happen during the upcoming elections to the 7^th parliament then there is no denying the fact that president cum chief advisor of non-party, neutrality shall not be above question marks because in the middle of March 1998 a full bench of the Appellate Division of the Supreme Court declared the arrest of JP Chairman H.M Ershad under Special Act of 1974 by the Caretaker Government headed by Acting President Justice Shahabuddin Ahmend instituted after resignation of Ershad from the Presidency on 6 December 1990 illegal.

The verdict came in the wake of Ershad’s filing a writ, pleaded by eminent lawyer Barrister Rafiqul Hague and others challenging his arrest and detention order during the functioning of the Shahabuddin’s care taker government from 6 December 1990 to 25 September 1991. In the writ petition Ershad also argued that had he not been arrested and detained JP could fare very well in the polls to the 15^th parliament.

This verdict of the appellate division of the Supreme Court made it clear again to all and substantiated JP’s allegations that by putting Ershad behind the bar and initiating a series of cases and harassing JP workers and leaders at various levels the elections could not be regarded as free, fair. And neutrality of Shahabuddin administration was in question politically, legally and ethically. Even Ershad was deprived of the privileges accorded to other parties, big or small, during the election period.

JP won 35 seats in 5^th Parliament and Ershad won five seats in his home district Rangpur. It could bag 60 to 70 seats as the election results claimed by JP leaders show that even in an atmosphere of suffocation, intimidation and harassment JP candidates were defeated in at least 35- 40 seats by a margin of 200-2000 votes only.

Shah Mohammad Abu Jafar, member of the presidium of the Jatiya Party and President of Jatiya Sramik Party while delivering a speech at Jatiya Party office organized by Jatiya Sramik Party strongly criticized Justice turned President Shahabuddin and said, “showing respect to the verdict of the Supreme Court headed by Chief Justice ATM Afzal, Justice turned President Shahabuddin could or should have resigned immediately from the office of the Head of State. With such a verdict on the shoulders how he feels relaxed morally, legally and politically to continue anymore?

This highly expected neutrality was also questioned by the then leader of the opposition in the 5^th Parliament and AL president Sheikh Hasina who immediately after elections accused publicly that a kind of “invisible and subtle rigging’ was hatched in a planned manner to keep AL out of power.

One must remember or bear in mind that the 11^th amendment to the Constitution was made in consideration or recognition of Justice turned President Shahabuddin’s widely acclaimed fairness and neutrality as acting the President of the then caretaker government. But Justice turned President Shahabuddin Ahmed unfurled the truth even a Chief Justice while working as the president of the country cannot be above or free from politics, national and international, in and around state. Here President Shahabuddin has crucified by Justice Shahabuddin.

So, logical proposition stands again: As the verdict of the Supreme Court itself has questioned Shahabuddin’s neutrality as Acting President of the then non party, neutral caretaker government in Bangladesh so the basic considerations, merits and appeal of the 11^th amendment through which acting president Shahabuddin went. Back to his original position of the Chief Justice of Bangladesh also had a conventional jerking when Barrister Maudud Ahmed, leader of the parliamentary party of Jatiya Party in the 5^th parliament, put a note of dissent to the passage of the 11^th amendment to the Constitution and it may now claim a logical base also in a different perspective.

It is more interesting to note that though Justice Shahabuddin was elected unopposed in the 7^th parliament, a writ petition was filed at the court challenging his becoming President of the Republic from the point of view of the Constitution, Barrister Asrarul Hossain, elaborating his argument said that Justice Shahbuddin was constitutionally disqualified to be elected the President of the country. Concentrating on his argument on the contention of Articles 48 (4), (9b), 66(2) (2A), (88), 99, 147, (1) and 152 of the Constitution, he explained that the service of the Republic means any service, post or office whether in a civil or military capacity in respect of the Government of Bangladesh and any other service declared by the law to be a service of the Republic.

He submitted that as Justice Shahabuddin was a Judge of the Supreme Court he cannot, according to article 99 (1), hold any post of profit of the Republic, Attorney General K.S. Nabi argued on the question of maintainability of the writ petition as the very petitioner was not a person of parliament (The voter who will elect the president) nor a candidate for the presidency. He argued that as the petitioner was not aggrieved person, he had no locus standi to file the writ petition.

K,S. Nabi also submitted that the writ petition in the form of quo war-rant was premature as Justice Shahabuddin was yet to enter into the office of the President.

The same division bench of the high court on August 5, 1996 issued a rule nisi calling upon the President elect Justice Shahabuddin, Chief Election Commissioner and the Secretary, Ministry of Law, Justice and Parliamentary affairs to show cause under what authority of law Justice Shahabussin was declared President elect of the People’s Republic of Bangladesh. The court also nominated three eminent constitutional lawyers Dr. Kamal Hossin, Barrister Rafiqe-ul-Haq Barrister Moinul Hossain as “Amicus Curiae” friend of the curt to assist the same in arriving at a conclusion on the issues raised in the petition. All of them gave opinion in favor of Justice Shahabuddin. The verdict of the court is not our concern at this very moment but the most important thing to us is that it has at least implicitly knocked at the door of his overall frame of integrity and sophistication unlike it was in 1990.

Article 106 says: “If at any time it appears to the president that question of law has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to the Appellate Division for consideration'. Neither a Jjudge nor a Chief Justice under any circumstances can volunteer any unsolicited advice to the President”. From this point of view, a Judge or Chief Justice cannot comment publicly on the activities of the legislative and the executive branches of the government and this very practice has, to the best of our knowledge, not been broken as of today.

Justice Shahabuddin could at best follow his India counterpart, the former Chief justice Hidayatullah, who became the acting President of India for a few days in the wake of a resignation of the then acting president V.V. Giri. To contest the election to the office of the President of India as an independent candidate supported by the then Prime Minister Mrs. Indira Gandhi, V.V. Girir resigned from the office of the acting president and also his original post of Vice President on July 18, 1969. In his place Hidayatullah, the Chief Justice, became the acting president pursuant to the President (Discharge of Functions) Act of 1969

After his coming back constitutionally to the office of the Chief Justice, so long Hidayetullah held the office he did not tell anything publicly. After his retirement he wrote a book captioned “My Own Boswell” depicting his experiences of the office of the head of the State of India.

In the wake of the ruling party’s initiative to enact the Public Safety Act, PSA, most of the political parties inside and outside parliament raised a storm of criticism against the bill apprehending that it would eventually be used against opposition parties, So, they called on President Shahabuddin to express their agonies about the possible motives of the bill. They also requested the president not to assent to the bill. But President did not give any appointment to Jamaat- e-- Islami delegation headed by its Ameer Golam E Azam. A Bangabhaban press release without explaining anything simply said that president should give audience to a Jamaat delegation headed by a leader other than Golam Azam. So the question is: How president cum chief advisor Justice Shahabuddin be fair and impartial to Jamaat during the functioning of non party, neutral CTG?

Or, how Jamaat e Islam on question of neutrality shall feel politically relaxed under such circumstances when president exposed himself hostile to Jamaat e Islam’s Ameer Golam Azam?

Therefore, a logical question is : Shall the incumbent president Justice Shahabuddin Ahmed be in neutrality while performing as the president cum chief advisor of the non party neutral CTG for holding elections to the 8^th parliament ?

Article 54 contains: “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.”

If it is found that President is not in a position to resume his function because of illness or absence or if the office of the president fell vacant in the event of his final exit (death) and if such situation occurs in after the dissolution of parliament or after the formation of non-party, neutral CTG in that case speaker shall assume the office of the president as become chief advisor of non-party, neutral CTG.

Needles to say that a member of parliament with a high political profile and position in a party is usually nominated by his party for a race to the office of the Speaker Constitutionally, MPs belonging to Majority Party or Majority Coalition in parliament elect speaker and Deputy Speaker. He may be elected unopposed Provided Main Opposition or Oppositions in Parliament jointly supports him or abstains front setting a candidate for a race against him ; otherwise he has to be elected facing a “Division Vote” in Parliament.

Office of the Speaker is subject to election pursuant to article of the constitution and truly speaking, speaker, like UK even India, short of influence of the ruling party and its prime minister in particular, is still on trial in Bangladesh where parliamentary democracy is yet to embrace a take off stage.

Opposition in the 5^th parliament Awami league, Jatiya Party and Jamaat vehemently criticized speaker Sheikh Razzak Ali, a senior politician and leader of BNP, for his alleged partisan role for the ruling BNP ignoring their voices.

Oppositions in the 7^th parliament BNP, JP and Jamaat have similarly become critical of speaker Humayun Rashid Chowdhury, a bureaucrat turned politician and leader of Awami League, terming him the speaker of the ruling Awami League not of Parliament comprising 330 members of Parliament of ruling and opposition parties.

Again the same question of contradictions with article 58C7 (19) (b) (c) (d) arises in a more acute and extended form.

Article 58C (11) that 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” is a confirmation to the remuneration that non-party, neutral government was modeled after the sprit of parliamentary system of government. It is on record in history that BNP lawmakers in the 6Th Parliament, widely called parliament of voter less elections, did not invest enough time behind the 13^th amendment; it was drafted, placed in parliament and passed in a haste in the face of the climax of the 24-month long stand-off that virtually brought the country to a point of ruination. The spirit and concept of non-party, neutral Care taker Government must be maintained, defended, ensured under any circumstances as it has not come out of a vacuum rather it has a long background of emergence.

Therefore, against the backdrop of the inoperativeness of article 58C (1), (2), (3), (4), (5) when the article 58C (6) shall get constitutional scope to become functional, ironically enough what shall have its immediate impact on the political scenario in the country cannot now be undermined or set aside, of course keeping the coming elections to the 8^th parliament in the right perspective. Now the logical question is why should the nation afford article 58C (6) at the expense of the concept and basis of non-party, neutral care taker government?

So the recommendations are:

1. Let the texts of the article 58C (6) be replaced by “if the provisions of clauses (3), (4) and (5) cannot be given effect to, the sitting Chief Justice of Bangladesh shall assume the office of the Chief Adviser of the Non-party Caretaker Government.” In this connection 11^th amendment to the Constitution shall be a guide.

2. It is better to drop article 58C (5).