Whose Court the Ball lies

23 October 2006, daily Star

In appointing the chief adviser to the non-party, neutral caretaker government, the hands of the head of state of the People's Republic of Bangladesh are tied by the constitution provisions contained in Article 58C (3), (4), (5), and (6).

It is the president, not a political party/parties, who will take the initiative to appoint such constitutional nominee; the president further cannot go beyond the four walls of Article 58C (7) (a), (b), (c), and (d) while deciding the qualification of such head of the CTG.

The most important and leading question involves Article 58C (7) (b) and while deciding the neutrality, in particular, political neutrality of this very constitutional choice, the president may have the following courses to embrace:

Either he may use as a measuring rod, an accepted consensus formula of interpretation of Article 58C (7) (b) of the political parties, both ruling and opposition;

Or he may apply his own conscience to decide the political neutrality of such constitutional choice, and to avoid any kind of criticism, political or otherwise, he may seek a reference for interpretation of Article 58C (7) (b) to the Supreme Court of Bangladesh.

Dr Kamal Hossain, chief architect of the constitution of Bangladesh, in an article captioned "President Should Resume Dialogue" published in The Daily Star on March 20, 1996, opined that under the circumstances of political or constitutional crisis, the president's seeking reference to Supreme Court of Bangladesh was not outside the boundary of the constitution.

Against the backdrop of the ongoing political landscapes in the country, it is a legitimate expectation of the people from all walks of life, that our political parties, now mainly involved in dialogues for discovering a common acceptable formula of Article 58C (7) (b), will not disappoint us.

Justice Hasan, the probable constitutional choice for heading the upcoming CTG, has three options before him:

He may assume the coveted august office; or

He may outright decline to assume the same considering the consequence of the political turmoil after his assumption to the same office;

He may assume the office following the invitation from the president, and then he may voluntarily resign, showing due respect to the legitimate expectation of the people.

Which one is best for him it is up to him to decide taking into account the whole stock of the political scenario in the country. The ball seems to be very much in the court of Justice Hasan.

Another drama may crop up in the political firmament of Bangladesh if the sitting chief justice, Justice JR Modasser resigns, becoming the immediate past chief justice of Bangladesh. If this happens, then Justice Modasser shall be constitutional nominee pursuant to Article 58C (3) and the president shall have accordingly no choice but to appoint him as chief adviser.

Now the question is: is there any constitutional or legal bar to such constitutional nominee for his voluntary resignation with a view to catching the office of the chief adviser? It does not appear so, and in that case the ball is definitely and conspicuously in the court of Justice JR Modasser.

Justice JR Modasser's formal appearance on the scene would further put an end to the slowly growing debate and controversy concerning the interpretations of Article 58C (3): "Provided that if such retired Chief Justice is not available or he is not willing to hold the office of Chief Adviser, the President shall appoint as Chief Adviser the person who among the Chief Justices of Bangladesh retired next before the last Chief Justice."

In fact, what does "the person who among the Chief Justices of Bangladesh retired next before the last Chief Justice" convey? According to the interpretation already put forward by AL and its allies, the sentence goes from the last to the first retired chief justice provided he is alive and willing to hold the office. BNP and its allies take the view that it is only confined to the second immediate past chief justice.

If this is so, then another big crisis shall crop up because the next last retired chief justice, Mainoor Reza Chowdhury, is already dead and therefore constitutional option for the office goes to the immediate past retired judge of the Appellate Division of the Supreme Court, now the sitting chief election commissioner, Justice MA Aziz.

Then, constitutionally, the ball shall go to Justice Aziz's court. What will happen next?

Again, because of the opposing approaches to the concept of "next before the last Chief Justice" here also consensus approach of both the parties is a pre-condition to put it into practice.

If there is no consensus politically, then the president has no choice but to go for a judicial interpretation of it in the form of a reference to the Supreme Court.