Making the President neutral effectively

(Abridge of this was published in the Financial Express on 13 May 2012)

President in the context of Bangladesh needs to be neutral in its entirety for being accepted and acclaimed by all the political parties inside and outside the Parliament in particular in time of a crisis, political or constitutional. We have seen and experienced in the past  how the then President Abdur Rahman Biswas remained a silent spectator with the head hung down in shame even  in the face of 24-month long-standing stand-off in1993-1996 that took the country to the almost extreme verge of collapse leading to ruination. Ironically enough, the President started raising his head when he was asked to do so by the Prime Minister Begum Khlada Zia and thus he overhauled himself to open dialogue with the opposition political parties notably with Awami League headed by Sheikh Hasina.

Yes, two things are held responsible for such helplessness of the President, which is a reality in any Republic of a Parliamentary democracy say, India, Pakistan, Nepal, Bangladesh and so on. One is President’s Constitutional obligations arising from the articles, clauses and sub-clauses dealing with his powers and functions while the other being his Political obligations, which are not accordingly inserted under such title and name, but, which emanate from the operation of the articles, clauses and sub-clauses dealing with the election to the office of the President. It is illustrative that the office of the President of Bangladesh, unlike other parliamentary democratic states, has been brought down to such a level by the Constitution (Twelfth Amendment) Act of 1996 wherefrom, in the words of Justice turned President Shahabuddin Ahmed, ‘he has virtually nothing to do but to go to graveyards and offer prayers and attend milad mahfil (a religious ritual in the Muslim community)’. Being under these two swords of obligations, President’s condition is like a fish out of water.

Notwithstanding the limitations contained in the Constitution, talks and debates to make the President free from direct politics and political parties are on in various modes and fashions. No viable and practicable ways and means are made available till the date and even constitutional experts, political scientists and political analysts have not come forward with any model to suit the very purpose in our context. Role of the Law Commission in this regard is also negligible or absent totally.

Here a reference may rightly be made to the Clause (4) of the article 50 in the Constitution of Bangladesh that states: 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’. This is actually a traditional display, which has been in practice since the very day of the working of Parliamentary System of Government in a Republic. It has been done out of the necessity because of the President’s becoming a part of Parliament otherwise, among others, by virtue of his legislative functions since Parliament consists of President, Treasury bench and the Opposition. But this very clause may also be a pointer for taking further initiative to keep the President aloof from political party.

Today, both from the standpoints of theory and practice, there is no denying the fact that time has come, or is matured enough, to give thought rightly to the asking, ‘Shouldn’t the President also resign from his post in the party, if any? Answer is yes. Because, to speak the truth, reality further unfolds that the President’s continuing with the political party (if any) as his political root and strength appears to be unbecoming and unhealthy on the possible grounds as follows:

a.       President should also resign his post in the party, if any. If the President continues to be a member of a political party, which is, in fact, the party /alliance in power in that case two things are disturbed instantly namely-one is that because of his becoming the President, she or he is also the first citizen of the country having his name at the top of the list of protocol in all ceremonies and occasions and the other is that the President being the head of the state should not be the second person anywhere in the state. Since the office of the Chief of the party with which the President is associated is not held by her or him in that case her or his position comes below the Head of the party concern. Furthermore, if such person is the Prime Minister then the centre chair goes to the Prime Minister who is officially the second person in the country. Therefore, President’s  official subordination and allegiance to the Prime Minister or other holding the office of the Chief of the party otherwise appear to be unbecoming  on all counts; and

b.       Furthermore, she or he should not cast his vote in any election from local to national bodies. It does not mean to snatch away her or his voting rights rather it is proposed to glorify his position as a true neutral person at home and abroad. She or he continues to enjoy her or his voting rights but that will, in the name of casting vote, not be exercised in favor of any person or party.

These can be solved in three ways. Firstly, the person immediately after his having been elected to the office of the President may set an example by resigning from the party; secondly, by initiating, following, maintaining and thus upholding as such a convention after understanding among the political parties notably in Parliament as such and thirdly, by making a constitutional provision to this effect. If the first one is done, it can develop as a ‘political convention’. If the second is preferred and put into operation then it will be a ‘constitutional convention’ but if the last one is chosen in the final analysis then an addition in this regard shall have to be made to the Constitution, which is to be called Constitutional provision and that is also possible by amending the article 50(4) giving it the shape as follows:

‘If a Member of Parliament is elected as President she or he shall vacate her or his seat in Parliament and his post in the party, if any, on the day on which he enters upon his office as President’; or

The clause may be rewritten in the following manner:

If a Member of Parliament is elected as President her or his seat in Parliament and post in the party, if any, shall stand vacated on the day on which he enters upon his office as President’

If such convention or constitutional provision is not available to any Parliamentary democracy even under the dissimilar circumstances it does not matter at all. Let it then be an invention or device so that others may follow or borrow it to apply in their political landscapes as we have done lavishly, and still are doing so on many an issue, in our context here in Bangladesh. We should not be oblivious of the facts that French model, also called Semi-presidential system and other many a model more or less resembling Semi-presidential system came into being to meet with the challenges in their respective perspectives because Westminster model in its contents and contexts mostly appeared to be inoperative and inconsistent. Thus, the aphorism ‘necessity knows no bounds’ acts as a silver lining for all the ages to come.

For making President neutral effectively attention should as well be given to the article 50(2), which reads: No person shall hold as President for more than two terms, whether or not the terms are consecutive’.

It is very much convincing that a President, sitting or past, cannot further be supported to continue for a second term without her or his tested allegiance to the Majority party/coalition in Parliament and, truly speaking, it depends largely on his or her overall loyalty-based performances either as immediate past President or past President, not as a President who showed his excellence otherwise.

No person has yet been nominated and elected for a second term as our President since no party/coalition has yet been elected for a second term consecutively, excepting BNP’s going to power through the so-called victory in the elections to the sixth Parliament on 15 February1996, which was boycotted by all the political parties in the opposition in the fifth Parliament including Awami League and Jamaat, although a few handpicked readily made political parties participated under the direct patronage and financial back-ups of  the ruling BNP.

There was a strong rumor at that time that Abdur Raman Biswas, then President of Bangladesh, had been tempted by the ruling BNP for a second term to the Presidency provided he should follow what it asked and passed. Yes, it is also true that he responded and acted accordingly but due to the escalating serious turmoil in the political firmament of Bangladesh longevity of the newly constituted BNP government became so short that it had to resign only after 21 days that is on 30 March 1996. Thus, the possibility of his being nominated and elected for a second term could not be tasted in reality. Again, during the functioning of the first Non-Party, Neutral Care-Taker Government in 1996 President Biswas played a very daring role to crack down the military coup hatched by the Chief of Army General Nasim, which he might have done, it is told and believed by many,, on the advice of his leader Begum Khaleda Zia, the immediate past Prime Minister, having the same intent in mind to continue for a second term. He did this without consulting the Chief Adviser, Head of the CTG, Justice Habibur Rahman Shelly because of his sole command over the defense forces by virtue of the article 61[Non-Party, Neutral CTG has been annulled by the Constitution (Fifteenth Amendment) Act of 2011 and, therefore, the applicability of the article 61 also withered away]. In the overall contexts of the prevailing politics, political parties and parliamentary democracy in Bangladesh, the office of the President should be kept aloof from such politics or risk of temptation.

Therefore, clause (2) of the article 50 may further be amended as ‘No person shall hold office as President for more than one term.’ Or

‘No person shall hold office as President for two terms consecutively’.

Moreover, it is on record in the history of the Parliamentary democracy that hardly a frontline leader of the first water is chosen, nominated and elected to this office, although choice of outstanding non-party personalities is found from time to time say, Dr. Sarvepalli Radhakrishnan, Dr. Zakir Hussain and Professor Abul Kalam Azad in India, Justice Abu Sayeed Chowdhury, Justice Shahabuddin Ahmed and Professor Iasuddin Ahmed in Bangladesh. Crude reality is that the matter is dealt exclusively by the mightiest and topmost leader of the party who usually holds the three leading offices in the single fist i.e. the office of the Head of Government, office of the Leader in Parliament and the office of the Chief of Party and thus wears the cap of ‘Three-in-one’. She or he hardly thinks of choosing, nominating and electing a person to this office who is not obliged and loyal to her or him under all the circumstances. Dr. Fakruddin Ali Ahmed, Gayni Zail Singh, Ramaswamy  Venkataraman, KR Narayanan and Protibha Patil in India and Mohammadullah and Abdur Rahman Biswas in Bangladesh bear testimonies to it. Even if any leader of the first or second water is ever nominated and elected that eventually takes place on account of her or his unflinching tested loyalty to the holder of ‘Three-in-one’ and such were the cases of Dr. Rajendra Prasad, Neelam Sanjiva Reddy and Dr. Shankar Dayal Sharma in India and Professor Dr. B. Chowdhury and Zillur Rahaman, sitting President, in Bangladesh. In fact, Prime Minister today is neither considered as the first, among equals (‘Primus inter pares)’ nor is regarded as a Moon in the lesser stars (an ‘Inter stallas luna minors). She or He has now emerged as the Sun around which planet-like Cabinet/Council of Ministers rotates or revolves and hence, the office of the President is not immune from such blast and domination.

Unlike the constitutional monarch, ‘President’ in a Republic of Parliamentary democracy in the end cannot but be the Prime Minister’s man, and remains obligated to her or him and that’s the logic of politics in the final analysis of the ongoing parliamentary democracy across the world. Countries such as India, Pakistan, Bangladesh, Nepal etc where PSG has been adopted bear glaring examples of this reality.

Therefore, the President being under the swords of Constitutional obligations and Political obligations together is like a fish out of water, which has further been squeezed and marginalized by the overall standing and stature of the person in the party as well as in the eye of the nation. Non-monarchical states that have meanwhile largely adopted Westminster model are, more or less, yielding the same feedbacks. Thus, the resultant consequence is the rise and proliferation of the Prime Ministerial system of Government from the fading so-called Parliamentary System of Government.

Therefore, a definite care needs to be taken care of so that the choice to the office of the President may be made from among such persons who are possessed of such outstanding and widely recognized qualities and qualifications by dint of which if any of them is voted to the highest office of the land, she or he may then remain determined and courageous enough to show his or her meaningful existence in spite of all the constitutional and political limitations therein. And it appears to be a condition precedent at this stage and state of Parliamentary democracy in Bangladesh as well.

Another leading point for making President neutral is that the President should be elected by the members of Parliament in a poll by open ballot instead of ongoing secret ballot. In fact, provision for open ballot was inserted in the Second Schedule of the original Constitution of 1972. But the Constitution (Twelfth Amendment) Act of 1991, which introduced Parliamentary System of Government for the second time in Bangladesh, after a lapse of seventeen years, did not restore the provision of the Second Schedule and, accordingly, law was enacted to the effect that the Presidential election was to be done through open ballot. ‘’This provision has, therefore, obviously created an open invitation for the election of a partisan president. A well-established practice in all the dominions of Great Britain and independent countries adopting Parliamentary system of government the neutrality of the head of the state was, therefore, not accepted’ noted Abdul Halim in his book ‘Constitution, Constitutional law in Bangladesh perspective’.

The issue of secret or open ballot was also brought to the notice of the Supreme Court of Bangladesh by way of a writ petition summary of which has been given by Justice Mustafa Kamal in his book ‘Bangladesh Constitution, pp 111-112’ as follows:

‘Following the general election in the country held in February 1991 Parliament enacted the President’s Election Act 1991((XXV11 of 1991) following which the President’s Election Rules, 1991 were framed by the Chief Election Commissioner. Section 10 of the Act provided for that the election of the President should be by an open ballot by the Members of Parliament, each of them having one vote. Several Members of Parliament instituted writ petitions, challenging section 10 of the President’s Election Act, 1991 as ultra vires the Constitution being violative of the Preamble and the Fundamental Rights of the freedom of thought and conscience guaranteed under Article 39 of the Constitution, as also being violative of Article 11 of the Constitution preventing people from effectively participating in the administration of Government through their representatives. It was alleged to be violative of Article 7 of the Constitution, which provides that all powers belong to the people. It was further contended that this provision destroys election as a concept and converts an election to a more selection. The so-called open voting is a denial of free exercise of franchise.

A division bench having split over the question issuing a Rule Nisi, the matter was referred to a learned Single Judge (Anwarul Haque Chowdhury,J) who repelled(Abdus Samad Azad vs. Bangladesh, 44 DLR(HCD) 354) the above contentions and held that the system of open ballot procedures could not be said to have taken away the right to vote freely and fearlessly. The expression ‘freedom of conscience and thought  have the ordinary meaning of freedom of choice between right and wrong and the system of open voting will not prohibit a Member of Parliament from distinguishing  the right from the wrong and from choosing one person from among several candidates on his own free will. Both the system, open and secret ballot, is recognized by the Constitution itself and there is no warrant for the view that in a democratic Government all votings must be by secret ballot and never by an open ballot. The High Court Division refused to issue any Rule Nisi and there the controversy between open and secret ballot rests at present’.

Keeping this very refusal of the High Court Division of the Supreme Court to issue any Rule Nisi on the matter of open and secret ballot in mind and true perspective, it can comfortably be said that under the ongoing state of politics in Bangladesh, yes, there are enough opportunities to give thought to the issue of secret ballot to make our President neutral more from the very outset of his being elected to the august office of the Head of State. To suit this purpose, necessary amendments have to be stricken to the Section 10 of the President’s Election Act of 1991.

Finally, attention should also be paid to the existing law which states that the President shall be elected by the vote of the Majority Members of Parliament. This should be rewritten and amended as ‘President shall be elected by the 60% or 70% vote of the Members of Parliament’. In that case hardly there shall be any chance for a person to be elected as President without support of the opposition in Parliament and here a consensus is likely to develop about the choice of a candidate for presidency. Certainly ‘fear and possibility of a deadlock’ because of lack of understanding between the majority party and opposition in Parliament cannot be overlooked and set aside anyhow. From the standpoint of reality of extreme confrontational politics in Bangladesh, this may not be possible today but its importance for the neutrality of President cannot be gainsaid at all.

Time and tide waits for none and that’s why we have to bear in mind that ‘initiative at the present at least at political level may result in a political convention in future’. Will Awami League and BNP take all these into notice positively for making President neutral effectively?