The retention of the post of the President as the head of the CTG was necessary because the administration of the country cannot be left in the hands of an appointed body even for a short period of time. The vacuum of power likely to be created by the resignation of the PM and the Cabinet might have influenced the founders of the constitution to give wider powers including Defence to the President. The President in a Parliamentary form of Government acts as a titular head, taking advice from the PM in most cases, in accordance with its principles. The retention of his position as a nominal head during the interim period of the CTG, requiring him to take action on the advice of the CA, is likely to jeopardise the democratic values. The President, who is elected although indirectly by the people, cannot be made subservient to an appointed person.

The effectiveness of any political innovation can be judged after it is put into operation when its merits and defects and other factors associated with its application can be identified. As the concept of the CTG is a new political phenomenon, its operation can be improved by taking necessary steps to rectify its defects. The practical application of the procedures to appoint a CA in 2006 has resulted in creating a political deadlock requiring remedial actions to improve its application.

The allegation by the AL that the BNP government extended the retirement age of the judges of the High Court and Supreme Court in order to ensure that a particular Chief Justice retires in time to become the CA of the CTG has created a political situation fraught with a grave constitutional crisis. The impasse to appoint a CA was resolved by invoking the constitutional provision that the President should take over the power of the CA in the event of a deadlock to appoint him from amongst the retired Chief Justices. Whether the procedures adopted in appointing the president as the CA was constitutional or not is not the subject matter of my topic, although most of the constitutional experts in Bangladesh considered such action as a flagrant violation of the constitution.

The founders of the constitution included such provision in the constitution as a last resort in order to resolve any constitutional crisis without giving proper thought to the consequences that could follow from taking over the power of the CA by the President. The granting of immense power to the President during the interim period, although not consistent with the principles of Parliamentary form of Government, can be justified if we take the view that the President as an elected person cannot act as a nominal head taking advice from an appointed person like the CA. But if we consider his position as an integral part of the CTG, while taking into account the fact that he is elected by the ruling party by virtue of their majority in the Parliament, there cannot be any certainty that he can rise above party politics to create an environment for holding a free and fair election.

The concentration of power of the president and the CA in one person is likely to make him a constitutional dictator as there is no authority to restrain him from abusing his power. Such abuse of power by one person, acting in the capacity of both the President and the CA, is bound to undermine the neutrality of the CTG if he cannot remain above party politics. The way the President is elected is likely to make him politically vulnerable. As the President is elected by the members of the Parliament, the ruling party is likely to exert its influence on the President because he is elected by their majority votes. It may prove difficult for him not to get involved in party politics. How can the President who is elected by the ruling party be expected to act independently to hold a free and fair election? In the following paragraph I will try to identify the weakness of such provision with a particular emphasis that the neutrality of the CTG, which is considered as its nucleus is likely to be seriously impaired.

The provision of the CTG is a unique feature in the constitution of Bangladesh. As no other country adopted a CTG, the founders of the Bangladesh constitution could not follow any guidelines towards its formation and application. They innovated the formation of such Government, defining its tenure, power and jurisdiction to suit the genius of the people of Bangladesh. The task was not easy because they had to combine the elements of both the elected and the appointed bodies towards the formation of such government. The retention of the post of the President as the head of the CTG was included in the constitution in order to maintain the representation of an elected body in the formation of the CTG. The founders of the constitution, while striking a balance between the elected and the appointed bodies in the formation of the CTG, ignored the fact that such representation could adversely affect its neutrality. Such neutrality could be maintained if the President who retains his post as a head of the CTG could work independently unhampered by any political intrusion. The only way to make him politically independent is to ensure that he, like the members of the Parliament, is elected by the people directly. Such change in the method of electing the President directly by the people, if adopted, would ensure the neutrality of the CTG and at the same time the representation of an elected body in its composition. However, although the political neutrality of the president as the head of the CTG can be maintained by electing him directly by the people, it will not be prudent to over burden him with the responsibility of the CA. Such concentration of powers in one person may give rise to a situation whereby the President can exercise his power arbitrarily. The powers of the President and the CA are clearly defined in the constitution in order to see that each of them, while performing his duties, keeps himself within the jurisdiction as outlined in the constitution. The President, while action in the capacity of the CA, in addition to his own duties, may not be able to make clear demarcation of such powers. Proper identification of such duties is necessary so that while acting in the capacity of the CA and the President he can confine himself within their respective jurisdictions. Such a situation is not likely to arise when they are performed by two different persons because each of them will be conscious to safeguard his own functions so that it cannot be hampered by the interference of the other.

A change in the method of electing the President directly by the people may put him in the same position as the PM, providing scope for a clash of power between them. Such clash of power may adversely affect their relationship, which may create an atmosphere not conducive to the smooth running of the Parliamentary form of Government. Despite the fact that the President will have the same basis of representation as the PM, his powers are restricted by the constitution requiring him to act on the advice of the PM as a titular head. The neutrality of the CTG, which is vital for holding a free and fair election, can only be maintained if the President as an integral part of it can remain non-political. The only way to make him relatively independent is to elect him directly by the people.

There cannot be any guarantee that the President will remain neutral even if he is elected by the people directly because each party will nominate a candidate of their own choice to contest the Presidency. However, even if the ruling party becomes successful in getting its nominee elected as the President, it would not be in a position to exert influence to the same extent as it could when it would elect him by its majority votes in the Parliament. Besides, the President being elected by the people directly should have the backing of the people's mandate not to succumb to any pressure from any political party in order to maintain his neutrality.

AK Md. Abedur Rahaman is a retired British Civil Servant.