Daily Star, 20 March 1996.
In the face of 24 month long stand-of that has virtually brought the country to the point of a total collapse, the head of the Head of the state was perhaps hung/bent down in shame, but upon an instant advice by the prime minister and BNP chairperson Begum Khaleda Zia, president overhauled his strength and started moving for a solution through dialogue with the political parties concerned and consultation with legal and constitutional experts including two former chief justice. In a statement to the nation on March 15, first since his becoming the President, he said: "from a thorough study of the constitution and opinions received from legal experts, it appears that the President has limitations and the constitution is required to be amended to accommodate the provision for formation of caretaker government (CTG) followed by a countrywide referendum. Appreciating the views of the opposition and constitutional experts on CTG he told: "A Presidential Reference, as suggested by some of them, may be made to the Appellate Division of the Supreme Court under Article 106 of the Constitution to seek its opinion provided all parties agree."
He warned: "National consensus cannot be reached unless the concerned parties show more flexibility in their respective positions" and pointed out very specifically: "The ruling party has accepted the main demands of the op-position of holding a fresh election and they have also agreed to pass a bill on CTG in the first session of the 6th Sangsad and hold general election by May under CTG.
President's statement was a clear indication to the futility of the outcome of dialogue initiated by him apparently upon requests by the concerned political parties and professional groups like FBCCI, ADAB, intelligentsia of various groups and shades of opinions but, actually upon an instant advice by the Prime Minister and BNP Chairperson Khaleda Zia.
The opposition denounced the statement saying that the president just echoed the views of BNP Ironically enough, within the passage of 24 hours President substantiated the opposition's blame by summoning the 6th Sangsad to a session at' 4pm on March 19.
My sincere intention is to focus on the points and situation under which the nation is supposed to suffer with reference to the powers ad functions of the President, and the election to elect the President according to articles, clauses and sub0clauses of the constitution amended by the 12th Amendment and the inherent weakness therein.
In fact, to speak the truth the condition of President Abdur Rahman Biswas is almost like a "fish out of water" first, out of his obligation to the. Constitution named as Constitutional Obligation and secondly to the BNP that backed him to the office of the head of the state.
Constitutional Obligations:
The articles clauses and sub-clause directly or indirectly connected with the powers and functions of the President of the People's Republic 48 (1), (2), (3), (5), recd with articles 56 (3) and 95 (1) dealing with powers and functions of President. 2. Article 72 (1), (2), (3) and (5) dealing with sessions of parliament. 3. Article 93 (1), (2), (3) and (4) dealing with ordinance making power of President. 4. Article 106 dealing with advisory jurisdiction of Supreme Court. 5. Article 119 (1), a, b, c dealing with functions of Election Commission and 6. Article 52 (1), (2), (3) and (4) dealing with the Impeachment of the President.
The most important as direct reference to understand the. Constitutional position of the president is the following that need to be highlighted for immediate attention:
Article 48 (1) reads: There shall be a President of Bangladesh who shall be elected by member of parliament in accordance with law Clause (2) reads: the President Shall as Head of State. Take precedence over all other persons in the state, and shall exercise powers and perform the duties conferred and imposed on him by this constitution ad by any other law. Clause (3) reads: In the exercise of all his functions, save only that of appointing the prime minister pursuant to clause (3) of article 56 and the chief justice pursuant to ------- (1) of articles 95, the President shall act in accordance with the advice of the prime minister.
Article 57 (2) reads: If the prime minister ceases to retain the support of a majority of the members of parliament he shall either resign his office or advise the president in writing to dissolve parliament, and if he so advises the President that shall, if he is satisfied that no other ember of parliament accordingly.
Article (3) says: Nothing in this article shall disqualify the prime minister for holding office until his successor has entered upon office.
Article 52 (1) reads: President may be impeached on a charge of violating this constitution or of grave misconduct, preferred by a notice of motion signed by a majority of the total member of members of parliament.
Article (4) reads: If after the consideration of the charge a resolution is passed by parliament by the votes of not less than two-thirds of the total number of members declaring that the charge has been substantiated, the President shall vacate his office on the date on which the resolution is passed.
In reality constitution made it clear that President shall have precedence over all others in the state including the government, and shall act upon advice by the prime minister excepting appointing prime minister and chief justice, if analyzed carefully it is also found that even appointing the prime minister is also conditional constitutionally that asserts that President shall appoint as the prime minister a member of parliament who appears to him to command the support of the majority of members of parliament, articles 56 (3). \Even the appointment of chief justice is basically based on a set of disciplines, norms and values, which the President hardly breaks. if not necessitated otherwise. President has to work within the four walls and limit of this constitutional frame. Otherwise he has to face impeachment under article 52.
Our President has constitutionally been made a titular head of the state by the 12th amendment to the constitution. Not a single voice was heard or sounded within or without parliament who could even sympathetically pointed out : What should be the constitutional provision for the President if the situation urges him to take an initiative for a solution which the ruling party fails to accommodate positively ? This very lack of farsightedness was later on detected by Chief Justce Shahad uddin Ahmed who through 11th amendment constitutionally found path to go back to the office of chief justice of Bangladesh from that of the president of the caretaker government. On October 10. 1991 in his address to the Supreme Court Bar Association, first after his come-back, the chief Justice noted with very dissatisfaction that the powers and functions of the President under the newly introduced under system of parliamentary from of government through 12th amendment has been reduced to such a limit wherefrom the President has nothing to do substantially but to offer prayer at the graveyard.
Our leaders might have been influenced by the then political turmoil in Pakistan and the role of its President Golam Ishaque Khan who by dint of his constitutional powers initiated such an unhealthy and unbecoming parliamentary democratic atmosphere that finally brought the untimely fall of the elected government of Benazir Bhutto and Nawaz Sharif government luckily escaped the wrath after having been blessed with a verdict by Lahore High Court.
But they could have taken a stock of the theory and practice of parliamentary democracy being followed in India since its birth on August 15, 1947.
This is very interesting to note that whenever our leaders o political parties moved for a system they tailored that only to suit their instant party or group interests. The 5th and 7th amendments introduced a kind of "presidential form of dictatorship" under presidential form of government. Their prime ministers were or less like the president under the 12th amendment of course, with variations in a different perspective.
Political Obligation:
Concept of head of the government under a parliamentary system of democracy originated from the role and position of King/Queen in the British system of parliamentary democracy, motherland of modern democracy.
The British system mostly based on conventions, customs, norms and values, accepted the King/Queen as a compromise formula that generated concepts like "King/Queen reigns, does not rule" "if a parliament passes a bill giving the King/Queen even a death sentence. The King/Queen has no choice but to sign it" and with birth and development of more and more political parties the balance has not yet been jeopardized.
But in case of a country or countries where King/Queen does not exist and where this can not be introduced, a procedure is sure to be followed to find out a head of state and the possible best practicable choice is "election".
Keeping this reality in true perspective, article 48 (1) reads : There shall be a president of Bangladesh who shall be elected by members of parliament in a accordance with law, article 50 (1) says : Subject to the provisions of this constitution, the president 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. Claus 2 says: No person shall hold office for more than two terms. It has further been asserted that President shall be elected by a majority Member of Parliament Constitution does not say whether he should belong to a party or not. But constitution made it clear pursuant to article 50 (4) ............ If a member of parliament is elected as President, he shall vacate his seat in parliament on the day on which he enters upon his office as President.
The very basis of the concept of election to the office of the head of state gives birth to two possible alternative approaches as follows: a) Nomination from within the party structure line : b) Nomination from without the party structure/line.
If a nomination is decided from within the party structure/line, it must go to a person or party leader below the rank and file of the party chief it happened in case of Mohammedullah, a former AL office secretary under Bangabandhu and Abdur Rahman Biswas, an ex-vice president of BNP under Khaleda Zia. Mohammedullah was virtually insignificant to Prime Minister Bangabandhu, father of the nation. President Biswas’s overall position to his party leader BNP chairperson Khaleda Zia can be understood from a reference that happened immediately after his having been elected to the office of the President. Khaleda Zia is learnt to have passed a message to the president-elect Abdur Rahman Biswas to meet her at the former's sangsad office. His leader could not duly weigh Biswas’s elevated position.
So, the problem of nomination from within the party structure/line is that it arises from party chief preference who. It is proved historically, hardly commits a mistake to find out such a nominee.
A party may also feel that instead of nominating a party leader it is wiser an better to go for a non-arty personality who has enough integrity and maturity, with a legal background and who commands the confidence of the nation as a whole at the same time being responsible to the party Bangabaadhu picked up Abu Sayeed Chowdhury as the head of the state on consideration of his outstanding contribution o the genesis of Bangladesh.
System of re-election at least at the -------- phase of parliamentary democracy may not be helpful as the incumbent president may feel tempted for being re-elected addressing himself to the majority party in parliament at the defiance of national interest and that's why it is in the air that the sitting president Abdur Rahman Biswas has been offered Presidency by BNP for the second term for which he may have to be obliged to BNP.
Therefore constitutionally and politically President of the Republic has been under two obligations and it is a call of the time, the nation and the reality to develop a third theory or a sort of compromise formula so that President in time of crisis of any nature may initiate a move or dialogue being at least for the time being above party or group interests. In such a background the following suggestions are put forward for immediate taking into account by the political parties while dealing with the powers and functions of the head of the state in the coming parliament.
1. Let the office of the President of the People's Republic of Bangladesh be fixed for one term only for a non-party outstanding personality with enough integrity and maturity having a legal background who at the same time enjoys the confidence of the nation as a whole. It is better to go for a retired Chief Justice or retired Justice of the Appellate Division of the Supreme Court of Bangladesh;
2. Let there be a constitutional provision that as the head of the state, as the custodian of the constitution and as the commander-in-chief of Armed Forces President of the Republic shall enjoy a set of powers to deal with a national crisis, political or otherwise provided the party-in-power has failed o cope with the same positively within the time frame of say 60/90 days and
3. Let the president move for an initiative either with a ref to the Appellate Division of the Supreme Court or at his own without a prior advice from the prime minister.
We have meanwhile suffered a lot in almost all areas. Our prestige and dignity have been lowered. But as a nation "We must stand with the head high in pride, not with the face hung down in shame." The sooner our political parties and leaders realize this better for us all.
Therefore, (a) Article 50(2) shall be amended as---No person shall hold office as President for more term. She/he shall be a non-party outstanding national personality with enough maturity and integrity enjoying confidence of the nation as a whole. It is better to go for a retired chief justice or retired judge in the Appellate Division of the Supreme Court of Bangladesh and (b) Notwithstanding anything contained in article 48(3), President shall enjoy a set of powers to deal with a crisis, political or constitutional or otherwise, provided the party/coalition-in-power has failed to cope with the same within the time frame of say, sixty /ninety days.
We have meanwhile suffered a lot in almost all areas. Our prestige and dignity have been lowered. But as a nation "We must stand with the head high in pride, not with the face hung down in shame." The sooner our political parties and leaders realize this better for us all.
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