[This was published in Dhaka Courier on 30
March 2013]
There are differences between an old lion and
a young lion, although both are lions. Old one cannot show aggression vigorously
while young one is apt enough to do so perfectly. There cannot a state without
a head of state whatever the form of government is. From the point of view of
powers and functions, office of the head of state should never be like an old
lion rather for the sake of nation it should rightly be ornamented with such
powers and functions so that the head of state remains in a position to prove
his/her excellence as a friend, guide and philosopher going above petty
interests, partisan or not, after the spirit of statesmanship and guardianship.
Is it possible in Bangladesh under the existing prime ministerial system of
government in disguise of parliamentary system of government? Is president
constitutionally and politically free to play a responsive and responsible role
about which talks and speculation are on all the time? Does election to the
office of the president mean merely choosing and electing a person as president
whether he is acceptable to all entailing the position and opposition in
particular? Which one is more important in our context, the person who holds
the office of president or the powers and functions incorporated in the
constitution for the office of president or the both? Time has come to give
thoughts on this very issue since following the death of Zillur Rahman, who was
voted to the office of the president of Bangladesh by the current 9th
Parliament for a period of five years term starting from2009 to 2014, election
to the office of the president of Bangladesh has now become a converse of the
land.
In the ongoing parliamentary system of
government office of the president of Bangladesh, like a member of parliament, is
not subject to bye-election--election for the unfinished period of the
immediate past President--, which means that in case of a vacancy in this
office on account of resignation(article 49(3),illness, incapacity(arr.53),
impeachment(art.52) or death[art.123(2) in part] there shall be an election to
fill the vacancy (meaning a general election for a period of five year term in
view of the fact that there is no indication of bye-election) and this has to
be done within ninety days after the
occurrence of such [ (art. 123(2)]. Curiously enough, paragraph two of the
Article 123(1) contains that ‘if the term expires before the dissolution of the
Parliament by members of which he was elected the election to fill the vacancy
shall not be held until after the next general election of members of
Parliament, but shall be held within thirty days after the first sitting of
Parliament following such general election’. Therefore, under all state of
affairs, office of the President in the constitution of Bangladesh has
deliberately been kept above bye-election’. Therefore, under all state of
affairs, office of the President in the constitution of Bangladesh has
deliberately been kept above bye-election’.
Framers of the constitution might have
incorporated such provision with a vision and mission to make this highest
august office of the land a unifying institution after the model of Queen/King
of British Parliamentary Government that shall remain as a symbol of neutrality
and unity without a break and, thus, holder of this office shall be the most responsible
guardian of the nation having wide acceptability not only to the majority
party/alliance in power but also to the major opposition/alliance in parliament
under all state of affairs, favorable or not (one may loosely call it idealistic in nature given that it is
very difficult to put into practice). Therefore, on account of resignation, illness,
incapacity, removal or death of President, the office should not be made open fractionally
to anything like ‘bye-election’ say, for example, in line with members of
parliament. It might further have been substantiated with profound logic and
mathematics that ‘let the Head of state, President in our perspective, be a
symbol of neutrality and unity being in the office for a full term even if
there is a sudden vacancy in the office
due to illness, incapacity, removal or death of President’. Such specialty and
peculiarity have together added uniqueness to this very office putting it on a
firm footing that ‘Head of state stands for a full term, not, under any
circumstances, for an unfinished term of his/her predecessor’. Therefore, let
us thank and salute to the framers of the constitution for such noble vision
and mission.
Now the pertinent asking is should we hold
them responsible also for not foreseeing the possibility of the rise and
continuance of confrontational politics in this land of oft-quoted ‘Golden
Bangladesh’, which may turn politics into politrics ( that aims at the
well-being of vested groups) bringing parliamentary democracy to the point of
collapse both inside and outside parliament? Yes, being respectful to their
noble intentions it can realistically be said that politics is a subject of
social sciences that predominantly deals with men, society and state having its
links necessarily with national, bi-lateral, regional and international matters
and concerns as a whole. What is right or feasible today may be wrong or
impossible tomorrow and vice versa. It is on record in history that visions and
missions are always made with fair and noble intentions. But these may be
disturbed and challenged afterwards for reasons, known and/or unknown.
Politically and constitutionally the office
of the president of Bangladesh under the present parliamentary model that came
into being through the Constitution (Twelfth Amendment) Act of 1991 has
definitely been set under such parameters wherefrom it is really a challenging
task for a holder of the office (president) to prove his/her excellence
upholding the principles of fairness, justice, neutrality, unity and
guardianship as versioned by the framers of the constitution. Here president is
like a fish out of water or is a kind of sandwich in-between political and
constitutional obligations because he has to discharge his functions being
under two swords simultaneously. One is constitutional sword (obligations)
arising from relevant articles, clauses and sub-clauses and other is political sword
(obligations) originating from (a) nomination by the majority party/alliance in
Parliament and (b) election backed by related articles, clauses and sub-clauses
in the constitution. Looking at the powers and functions incorporated in the
constitution by the Constitution (Twelfth Amendment) Act of 1991, Justice Shahabuddin
Ahmed, immediately after coming back from the presidency of Bangladesh to the
office of the chief justice of Bangladesh through the Constitution(Eleventh
Amendment) Act of 1991, while delivering speeches at a reception accorded to
him by the Supreme Court Bar Association on 24 October 1991 pointedly remarked ‘President
virtually enjoys no powers and he has now nothing to do but to offer prayer at
graveyards and attend milad mahfils (a kind of religious festivities in Muslim
community)’, which signifies that our President is a ‘Zero-powered president’. It further urges
that President of Bangladesh should never be compared or equated with the head
of state, Queen, in UK who, due to constitutional monarchy, is beyond
party-based politics, election and time-limit.
There is no denying the fact that Article
48(3), being the root of all, having its presence patently as a ‘Lavation’ in
the constitution of Bangladesh. Adding of the words ‘in writing’ in many places
in favor of the Prime Minister to squeeze the exercise of the relevant powers
and functions of the President has
undeniably put the President in the most
titular position. No less important is the unclothed use of the phrase
’Prime Minister’ instead of Cabinet/Council of Ministers.
If, on the one hand, President violates
his/her constitutional obligation(s) then he has to face impeachment under
article 52 and, on the other, if a President does not take care of the
interests of the party/alliance that voted him to the office then he has to
meet with harsh music from the respective party/alliance. Reality is that
nomination for this office is decided solely by the PM who is also leader of
the house and chief of the respective party and such nomination mostly goes to
a ‘PM’’s most loyal person’. All the past presidents of Bangladesh under
parliamentary government from 1972-1975 and since 1991 down to late Zillur
Rahman carried more or less same legacies of ‘His master’s voice’ because of
their being under these two swords’. All of them mostly showed excellence in
listening to their respective Prime Ministers even in time of the gravest
crisis when the voice of head of state, president, was supposed to be heard
differently at the call of time. One or few of them such as Justice Shahabuddin
Ahmed and Professor Badruddoza Chowdhury tried to play a role to advise, warn
and guide but, as ill luck would have it, they politically confronted very hard
lessons steered by the respective Prime Ministers.
Therefore, whatever qualifications a person
is possessed of that are not enough for making a president responsive and
responsible as a whole for the nation. Even the most acceptable choice of
Bangladesh can hardly prove his/her worthiness sitting in the very chair of
president in the present political and constitutional environments. From these
very standpoints, Zillur Rahman shall be recalled by the people and political
parties, both position and opposition, as a person, political leader and
statesman, but his role as president of Bangladesh is not convincingly enough
to put him on the same scale and weight demonstratively because his presence as
guardian of the nation was hardly felt and understood in time of needs on various
occasions. It happened so because he preferred not to take note of the calls of
the people and major opposition party/alliance in the 9th Parliament
in the context of time, space and dimension. He was highly trusted to his
political principal Awami League President and Prime Minister Sheikh Hasina and
he tried his level best to stick to that till the death. Opposition BNP
responded positively at his call on the issue of dialogue about the choice of
Chief Election Commissioner but very soon called him partisan and president of
Awami League when it found that not a single recommendation from BNP led by its
chief and leader of the opposition Begum Khaleda Zia was taken into account.
Yes, there was nothing wrong on the part of President as he had to act being
under the swords of politics and constitution.
That’s why, I am very much confused when I
see and hear that the major opposition BNP, being fully convinced, from the
very seat of position and opposition, of the political and constitutional obligations
of the president of Bangladesh, is attaching historic importance to the overall
integrity of the person who is supposed to be elected to this office if BNP
really wants a president who can take an initiative in his own without
vulnerably looking at the Dragon-like Prime Minister as and when required for
the interest of nation. Here lies the truth of BNP’s reluctance to see the
president as a meaningful one. What it is now doing must be dubbed as boiling
waters to catch the targeted fish finally making others bewildered. BNP should
speak clearly whether it wants a responsive and responsible president
constitutionally or not. It must not forget that a good man with no stick at
least can hardly face a snake.
Hence, what first of all is needed is to redistribute
the powers and functions of the president and prime minister to empower meaningfully
the constitutionally weakest president. Keeping all these in true perspectives,
vacancy in the office of president following the death of Zillur Rahman should
or may be decided in line with recommendations as follows:
(a)
Before
nominating and electing a new president of Bangladesh who will continue during
the terms of this parliament and more than four years of the next Parliament,
it is better and wiser to give thought to create a balance of powers and
functions between president and prime minister bringing amendments to the
related articles, clauses and sub-clauses. Leader of the opposition, if she is
sincere enough, should raise her strong and meaningful voice in support of this
right now;
(b)
Since
existing provisions dealing with the tenure of the president carries germs and
possibilities of log jam between Prime Minister/ Council of Ministers and
President if the office of President is ever held by a person who is not
elected by the party/alliance in power, in that case it is better and wiser to
incorporate necessary provisions in the constitution to the effect that ‘’there
shall be a bye-election in case of a vacancy in the office of the president
arising from any reason’;;
(c)
This
vacancy may be met with either electing a new person as President or making a
provision to this effect ‘that there shall be a Vice-President of Bangladesh
who shall hold the office of the president for the unfinished term of the
immediate past president in case of a vacancy in the office. The Vice-President
shall be elected by the majority members of parliament in the same manner and
mode of election to the office of the president of Bangladesh;
(d)
Provision
should be made by amending Article 50(2) to the effect that ‘No person shall
hold office as President for more than one term’. This will act as an
impediment for one’s being tempted for the office again and, to suit the very
purpose, act accordingly to satisfy the wishers of the party/alliance in power;
(e)
A
person, after having been elected to the office of president, shall right away
disassociate himself from the party, if any.
Yes, above should be a model ‘For a President
Who Can an Initiative’ (for details one may go through my book under the same
title published by Bangladesh Political Science Association in 2007). There is
no wrong or surprise if Sheikh Hasina or Sheikh Rahena feels free to be elected
as president under this model. Even option is fairly coveted for Begum Khaleda
as well. Apart from these, various models like French model, Srilankan model,
Indian model, Pakistani model in meticulous may also be studied thoroughly for
digging more and more relevant points. It would highly be encouraging and
practicable if attempts are made to devise a ‘Bangladeshi model’ in our
perspectives.
But if now a president is elected without
taking note of the necessity to empower the office reasonably then nobody
should be in doubt that such president shall have no choice but to beat the
drum of the party/alliance in power at the same time being ‘mostly dependent on
the Prime Minister’ under all state of affairs. So, let us all pray to Allah,
creator of universes, so that we the people of Bangladesh are duly blessed with
a Head of State, President in our context, who shall not be merely a titular in
discharging his/her functions rather he shall be a President who can side with
the nation as and when required. Yes, it would really be shocking for the
nation if there arises a kind of Presidential System of Government in the wake
of the failures of our political parties and leaders.
No comments:
Post a Comment