Law in-depth
Article 58C (6): Aladdin's lamp?
Amendment needed for the sake of democracy
Sinha M A Sayeed
The expression of Article 58C (6) has articulately been made too prosaic saying: Notwithstanding anything contained in this Chapter, if the provisions of clauses (3), (4) and (5) cannot be given effect to, the President shall assume the functions of the Chief Adviser of the Non-party Caretaker Government in addition to his own functions under this constitution.
The phrase 'notwithstanding anything contained in this chapter' apparently makes Article 58C (7) inoperative, Article 58B (2) meaningless and Article 48 (3) insignificant while the rest of the writings in the clause are, more or less, related to the functions of the Chief Adviser to the nonparty, neutral CTG.
Truly speaking, the debut constitutional and political experiment of Article 58C (6) has proved to be a dangerous exercise because of its immediate negative feedback on the democratic political culture in Bangladesh. It has, in practice, manifested itself as Aladdin's lamp in the hands of President-cum-CA Professor Iajuddin who has meanwhile by a number of measures and steps proved himself puzzled as to what to do, when to do and how to do.
President-cum-CA Professor Iajuddin perhaps is not in a position firmly to bear the unique, unprecedented impact of the weight of Article 58C (6); it is neither possible on the part of a person even being in the highest office of the country to move arithmetically and geometrically having two caps on head. Out of such peculiarity of the newly emerged position he might have made a mistake by branding his government a kind of presidential in nature; on the other hand it is also a fact that the government now under him is neither presidential nor parliamentary, rather it is a centralised administration in the hands of a single person known as President-cum-CA, which is not understandable even to a student of politics/political science or of law. It may be a source of research to political scientists and thinkers in future.
And therefore, it is an outright rejection of the concept and spirit of the non-party, neutral CTG introduced by 13th Amendment to the constitution which, of course, has been devised in the wake of chronic mistrust and doubt of political parties of each other and one another.
During the period of June and July, 2000, I wrote a series of articles on the 13th Amendment to the constitution. In one of the articles titled 'the spirit of caretaker government' focusing mainly on Article 58C (6) I made an analysis to show what would be the consequences if this sub-clause be operative even under president Justice Shahabuddin during the functioning of second CTG in 2001.
The recent exercise of the options (3), (4), (5), (6) and jumping from sub-clause (3) to (6) without proper application of (4) and showing a total disregard to (5) further tells the nation that had there been no option of (6), the president could not have emerged as President-cum-CA. Political leaders, constitutional experts, lawyers, intelligentsia and professional groups of various shades and backgrounds have meanwhile registered strong voice against existence and continuance of the sub-clause for the sake of smooth running of democracy and non-party neutral CTG.
Therefore recommendations for a further amendment by Parliament are:
1. Sub-clauses (3) and (4) may be kept intact while sub-clause (5) should be dropped; sub-clause (6) be amended and replaced with the following paragraph--
If/when parliament is dissolved anytime before expiration of its term or stands dissolved by reason of expiration of its term, the sitting chief justice of Bangladesh, pursuant to article 58B (1) will take over as Chief Adviser to the non-party, neural caretaker government; and then, on the date which a new Prime Minister enters upon his office after the constitution of parliament, shall, accordingly, go back to his original office of the Chief Justice of Bangladesh. Here the spirit of the 11th Amendment to the Constitution of Bangladesh and of the reference to the Successive Act in the Constitution of India may duly and relevantly be utilised; or
2. Sub-clauses (4) and (5) shall be dropped; sub-clause (3) shall continue and (6) shall be amended and replaced as mentioned above; or
3. Sub-clauses (3), (4), (5) and (6) in the Article 58C shall be dropped in toto and a new amended provision of (6) as mentioned above in serial 1 shall be provided accordingly.
The writer is a faculty member, Newcastle Law Academy and former International, Publicity & Publications Secretary, Jatiya Party.
