18 October 2006, New Nation and
In the context of the ongoing political scenario moving very fast towards a final climax centering the political involvement, directly or indirectly, of the Justice K.M. Hasan, a possible constitutional choice for the office of the coming non party, neutral caretaker government, article 58C (7)(b) needs to be focused from the point of view of its possible modes of interpretations. Usually interpretations do come from the Judges; but if the matter is a political one inviting interpretations from the political parties, ruling or opposition, then it is a Hobson's choice to do so. In fact article 58C (7)(b) shall have to be read with articles 58C(1), 58C(2). Therefore a ready reference of such articles from the pages of the constitution of Bangladesh seems to be unavoidable.
58C(1) reads - The Non-Party Care0taker Government shall consist of the Chief Adviser at its head and not more than ten other Advisers, all of who 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.
58C (4), (5) & (6) contain possible options in succession for the office of the Chief Adviser accordingly.
And for the qualification of an adviser Article 58C (7) reads -
(7) The President shall appoint Advisers from among the persons who are -
(a) qualified for election as members of Parliament;
(b) not members of any political party or of any organization associated with of affiliated to any political party;
(c) not, and have agreed in writing not to be, candidates for the ensuing election of members of Parliament;
(d) not over seventy-two years of age.
Regarding sub clauses (a), (c) & (d) there is no confusion and ambiguity, but on point of interpretation of sub clause (b) divergence of opinions is well manifested; but the question is where the application of this provision starts from? There may possibly be three modes of interpretations to Article 58C(7)(b);
The sub clause shall be effective from the pre-judge stage i.e. even before joining as judge in the High Court Division of the Supreme Court;
If the first choice/interpretation is considered in that case hardly any retired Chief Justice/Judge in the Appellate Division of the Supreme Court shall be qualified for the office of the Chief Adviser/Adviser if he had any attachment with any political party, directly or indirectly before joining as Judge of the High court.
2) Or this shall be effective after retirement from the office of the Appellate Division or Chief Justice of the Supreme Court of Bangladesh.
If the alternative choice/interpretation is preferred in that case the person shall also be disqualified for the same office if he has any political attachment with any political party, directly or indirectly, after his retirement.
3) Or there may also be another interpretation of this sub clause i.e. both the ruling party/alliance and the opposition/combine, may agree that neither pre-judge stage nor post retirement stage is important; What is important is that whether the "constitutional choice" was or is involved in any political party, directly or indirectly. If this choice/interpretation is accepted then the scope for availability of any constitutional choice under 58C (3) and (4) shall be the narrowest one and retention of such provisions in the constitution may finally be useless.
Now the question is which one shall be acceptable? Keeping these interpretations in the true perspective of the dialogue taking place between Awami League General Secretary Abdul Jalil and BNP Secretary General Manan Bhuiyan, the burning question of Justice Hasan issued can be solved amicably provided they are in a position to reach a consensus interpretation of the sub clause.
It is the President, not the political parties, who will take an initiative to apply Article 58C (7) (b) while deciding the political neutrality of the constitutional choice for heading the non-party, neutral CTG. Thus whenever consensus interpretation is arrived at by the political parties, both ruling and opposition, it shall be a measuring rod for the President's decision.
Alternatively the constitutional choice may himself decline to assume the office constitutionally by applying the words in sub-clause (6) that reads: ----- or he is not willing to hold the office of Chief Adviser. Again the reality is such that the constitutional choice may not voluntarily to this; groundwork must have to be done by the political parties, both ruling and opposition, either to convince him to do so or to create such situation which will compel him to follow the course/path to exit. In all cases no constitutional amendment is required. Similarly if no consensus interpretations come out of the ongoing dialogue the president has no choice but to follow the constitutional provisions in succession.
Therefore, the nation is looking forward to see how the burning "Hasan issue" is likely to be solved in the fifth round of dialogues scheduled to be held on 23rd October between BNP secretary general Abdul Mannan Bhuiyan and Al general secretary Abdul Jalil at the Parliament Bhaban. It is believed, to reach an amicable consensus formula on the interpretation of the points, which shall be accepted finally by the parties concerned..
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