There is now serious question whether the president's assumption of the position of the chief advisor was constitutional or not, whether it followed the constitutional procedures or not. It is almost beyond doubt that the assumption did not follow the constitution's ordained sequences.

As the tenure of the BNP-Jamaat alliance came to an end at midnight of October 27, on October 28, the president met two leading leaders of BNP and Awami League, informed them of Justice KM Hasan's inability to assume the position of the chief advisor, contemplated by the constitution as the last retired chief justice, and according to news reports, expressed his preparedness to lead the caretaker government.

Amongst others, in a front-page appeal, the editor of The Daily Star urged the president to stay away from controversy: "[The president's] offer of himself to head the caretaker chief came a bit too early to be above all legal questions and propriety. There are five distinct steps that need to be taken before the president becomes a legal alternative."

The Awami League rightly rejected the president's offer to take over the caretaker government, as did the Supreme Court Bar Association.

The president, however, disregarded all appeals, but most importantly, also disregarded the provisions of the constitution. Article 58 C provides six options, five of which have to be exhausted first before the president could become chief advisor.

Option 1: Under Article 58C (3): "The President shall appoint as the Chief Advisor the person who among the retired Chief Justices of Bangladesh retired last" and who is otherwise qualified under Article 58C (7). Here the word "shall" means "must" in law with no choice (as opposed to phrase "may" which connotes discretion).

In case, "such retired Chief Justice is not available or not willing to hold office of Chief Advisor," then:

Option 2: "The President shall appoint as Chief Justice the person who among the retired Chief Justices of Bangladesh retired next before the last retired Chief Justice."

Use of phrase "retired Chief Justices of Bangladesh," contemplates the possibility of presence of more than one retired chief justice.

Option 3: Article 58C (4): "If no retired Chief Justice is available or willing to hold office of chief advisor, the President shall appoint as Chief Advisor the person who among retired Judges of the Appellate Division retired last."

In case, "such retired Justice is not available or not willing to hold office of Chief Advisor," then:

Option 4: Article 58 C (4): "The President shall appoint as Chief Justice the person who among the retired Judges of the Appellate Division retired next before the last such retired Judge."

Option 5: Article 58 C (5): "If no retired Judge of the Appellate Division is available or willing to hold office of Chief Advisor, the President shall, after consultation, as far as practicable, with the major political parties, appoint the Chief Advisor from among citizens of Bangladesh who are qualified to be appointed as Advisors under this Article."

Option 6: Under Article 58 C (6), only "if the provisions of clauses (3), (4) and (5) cannot be given effect to, the President shall assume the functions of the Chief Advisor."

Here, the constitution leaves no choice for the president but to act exactly in this prescribed order. The use of the word "shall" limits the president's power and obliges him to act without fail.

Moreover, the use of plural to denote "retired Chief Justices" and "retired Judges" means that the drafters of the constitution assumed that there could be more than one retired chief justices and judges. This is reinforced by the use of the expression: "If no retired Chief Justice is available" and "If no retired Judge of the Appellate Division is available" in Article 58C (4) and Article 58C (5) respectively, which suggests that option 1 and 2 are only completed when there is not a single chief justice available or willing to act as chief advisor, so also for the retired judges of the Appellate Division.

This also is common sense interpretation. The drafters of the constitution could not have chosen a retired judge of the Appellate Division while still a retired chief justice was around and willing. Equally, where a retired Appellate Division judge was available, the constitution could not have opted for to search a chief advisor from amongst citizens of Bangladesh. The idea was rather simple; first exhaust searching retired chief justices, then the retired Appellate Division judges, then from among the citizens of Bangladesh, and only then, if all efforts failed, the president would assume the responsibility.

If sequences of these constitutional mandates are checked with time lines of facts and happenings on the ground, it will be found how the president jumped the queue.

On Friday evening, October 27, the president's office announced postponement of Saturday's (October 28) oath taking of Justice KM Hasan as chief advisor, as he was "indisposed," while immediately, reports appeared in the media quoting persons meeting Judge Hasan around the time, him being in good health, which was confirmed in Judge Hasan's own statement a day later, explaining his inability to accept the position of the chief advisor, where there was no reference of his reported indisposition. That was the first knock to the president's credibility.

In any event, when Judge Hasan declined, the president had no choice but to appoint the remaining retired chief justice Mr Mahmudul Amin Chowdhury. According to news reports, BNP then offered to the president different interpretation to Article 58 C (3) and (4) the constitution against appointing Judge Chowdhury suggesting, that search for retired chief justice stops at two retied chief justices.

Although this is a non-starter argument, because logically a retired Appellate Division judge could not get preference over a retired chief justice, but nonetheless, this was a serious question of interpretation of the constitution which never arose before.

In such a situation, the president had two options; he could have invited eminent legal minds of the country to share their views with him, or, most constitutionally, he should have followed Article 107 of the constitution.

Article 107: Advisory jurisdiction of Supreme Court
If at any time it appears to the President that a question of law has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to the Appellate Division for consideration and the division may, after such hearing as it thinks fit, report its opinion thereon to the President.

This provision has been there when there are different interpretations of law with enormous public significance, and there could not be anything more important than appointing a chief advisor of a non-party caretaker government to hold parliament election to ensure continuity of country's democratic system.

He did neither, instead, accepted argument advanced by BNP, as he himself said in his broadcast to the nation after assuming the position of chief advisor. He did not appoint the third retired chief justice (as the second judge had expired), which, under the constitution, he was obliged to. Meanwhile, Judge Chowdhury said to the press that he was not offered the responsibility.

The president then rightly ignored option 3, as the retired judge is currently holding another constitutional position as the chief election commissioner, and is prohibited by the constitution's provision to hold to two such positions concurrently.

The president should have then opted for option 4, but as it transpired from the statement to press of the judge in question, Justice Hamidul Haque, he agreed to accept the position of the chief advisor on condition that if both parties agree about him, since "different explanations of the constitution's Article 58 (C) have surfaced." In his letter to the president, he said, he did not express his inability to assume responsibility.

Justice Hamidul Haque's letter should have been enough for the president to rigorously consider question of different interpretation of Article 58 C by resorting to the Supreme Court's advisory jurisdiction.

But, instead of following these procedures scrupulously one after another, he threw the baby out with the bath-water and offered himself as the chief advisor to the two leaders of BNP and Awami League yesterday, skipping all other provisions, option 4 and 5, only to be reminded by the Awami League later that he should follow the constitutional provisions.

Then he invited only four political parties on October 29 and supposedly followed option 5 as he later claimed in his speech. None of the participants of the meeting reported the president talking about finding a person, from among the citizens of Bangladesh, qualified to be appointed as chief advisor. He did not seek any name nor did he himself suggest any.

The nation was left guessing, and the president assumed the position of the chief advisor, revealed to the nation only when he was invited to take oath as the chief advisor at the swearing in ceremony. This was an extremely non-transparent way to assume the position of a supposedly non-partisan, neutral caretaker administrator, supposed to ensure holding of a transparent general election.

On the contrary, for the last few days, the former prime minister and other alliance leaders have been telling opposition political parties and the nation that the president's decision will be final and all must abide by that, which suggests that this was a pre-scripted event, where BNP-Jamaat were aware of the president's decision to assume the chief advisor position, as testified by the fact that no name of any eminent citizen was even raised or discussed under option 5. In other words, all was fixed well before the process began.

This is bound to raise serious doubts about the president's honesty of purpose, and one doesn't have to be rocket scientist to guess how transparent and fair the upcoming election would be. I only hope that the honourable president and now chief adviser proves me wrong in the coming months through his actions. Let us see.

The author is a Consultant, International Law.