Star Law Analysis
A Constitutional leapfrogging to the last option
M. Moazzam Husain
Amid terrible political unrest the President assumed the functions of the Chief Adviser of the 'Non-party Caretaker Government' in addition to his own functions. The phenomenal takeover by him came in the backdrop of refusal of Justice K.M. Hasan to assume the responsibility as the Chief of the caretaker government following a nationwide political movement launched, in demand, among others, of his exclusion on point of his linkage with the (erstwhile) party in power Bangladesh Nationalist Party (BNP). With Justice Hasan-issue settled in this way came up the question of reverting back to other Constitutional options for the office.
The need to look for other possible options made us to turn to the respective clauses of the Constitution. The phraseologies the Constitutional clauses relating to the Caretaker Government are couched with came to the fore in terms of their letters and import as to the range of persons the President must be confined to in his obligation to appoint the Chief of the Caretaker Government. Different opinions from different constitutional experts and senior lawyers began to pour in but they appeared to have branched into two conflicting lines of interpretations.
One line of opinion is that the Constitution provides in all six options: first the Chief Justice who retired last and if he is not available, second, the Chief Justice who retired immediately before him and if he is not available, third, the Judge of the Appellate Division who retired last and if he is not available fourth the Judge of the Appellate Division who retired immediately before him and if he is not available, fifth, any citizen of Bangladesh to be nominated upon discussion with major political parties and if such person is not available, the sixth and last option is the President.
It needs be mentioned that any person to be appointed as such is subjected to four conditions, namely, (a) he is qualified for election as member of Parliament, (b) not member of any political party or of any organization associated with or affiliated to any political party, (c) not a candidate for ensuing Parliament election and (d) not over seventy two years of age.
Another line of argument is that the plain reading of the Constitutional clauses negates the above view and widens the ambit of choice so far as the Chief Justices and Judges are concerned, to the one who has not exceeded seventy-two years of age. The experts holding this view seem to be so convinced by the letters and spirit of the constitutional clauses that they outright dismiss the other view as wrong. The lawyers advocating this view strongly hold that the panel of Chief Justice and Judges are not limited to four only. It extends to any justice/judge not exceeding 72 years of age. A plain reading of the relevant clauses lends support to this view, as they emphasize.
In the Constitutional melee the actual letters and phraseologies used therein need be quoted. In view of the dearth of space the most relevant portion of Article 58C of the Constitution are reproduced below:
“Article 58C(3) The President shall appoint as Chief Adviser the person who among the retired Chief Justices of Bangladesh retired last and who is qualified to be appointed as an adviser under this Article:
Provided that if such retired Chief Justice is not available or is not willing to hold the office of Chief Adviser, the President shall appoint as Chief Adviser the person who among the retired Chief Justices of Bangladesh retired next before the last Chief Justice.
(4) If no retired Chief Justice is available or willing to hold office of Chief Adviser, the President shall appoint as Chief Adviser the person who among the retired Judges of the Appellate Division retired last and who is qualified to be appointed as an Adviser under this Article:
Provided that if such retired Judge is not available or is not willing to hold the office of Chief Adviser, the President shall appoint as Chief Adviser the person who among the retired Judges of the Appellate Division retired next before the last such retired Judge.
(5) If no retired Judge of the Appellate Division is available or willing to hold the office of Chief Adviser, the President shall, after consultation, as far as practicable, with the major political parties, appoint the Chief Adviser from among citizens of Bangladesh who are qualified to be appointed as Advisers under this Article.”
The President comes next as the last option.
The controversy seems to have arisen out of the phraseologies chosen to be used by the drafters. This is ultimately a matter to be resolved by the Supreme Court. It may aptly be put in the words of Charles Evans Hughes, Ex-Chief Justice of the United States Supreme Court: “We are under a Constitution, but the Constitution is what the courts say it is.”
Constitutionality of the takeover
Without going into the controversy as to the ambit of choice provided by the Constitution it can reasonably be said that the way the Constitutional options were exhausted didn't look like usual procedure of doing so. If it is accepted that Justice Mahmudul Amin Chowdhury suffered Constitutional bar there were two other options, namely, Justice M. A. Aziz and Justice Hamidul Haque the last retiring judges of the Appellate Division. Justice M. A. Aziz no doubt has made himself highly controversial and is now holding a Constitutional post. In view of the reality he is now facing he, by all probability, would have declined to accept the offer of being the Chief of the Caretaker government. The fourteen party alliances already raised objection about him. Still technically speaking, he cannot be wished away on the objection raised or on the ground that he is holding a constitutional post. I do not find any legal bar in offering a justice/judge of the Supreme Court falling within the options but at the relevant time holding a Constitutional post to hold the office of the Chief Adviser. It is not as much for Justice Aziz as a person that the offer was to be made as it was for exhausting the options provided by the Constitution. The President's explanation that he is holding a constitutional post does not seem to be enough in view of our Constitutional position and prevailing practices in particular.
As for Justice Hamidul Haque, he was communicated with by the Military Secretary of the President. As things later transpired Justice Haque expressed his mind saying-'if both the parties agree I do not have objection. But if they do not agree it would not be proper to accept the proposal.' He was requested to put his words in writing and send the same through a messenger to be sent to him from Bangabhaban. His written words to that effect were taken to be his refusal to accept the post of Chief Adviser. Firstly, as I understand the procedure adopted in inviting opinion of the possible Chief of the Caretaker Government was not acceptable in any view. Secondly, Justice Haque later made his position clear saying to the media that he had not declined. He was willing to take over charge of the Caretaker Government provided both the parties could agree. This vague words put in writing collected through an official of Bangabhaban in view of Constitutional importance of the matter cannot be translated into refusal.
The fifth option, as it is so called, i.e., one amongst the citizens could never find the light of the day. The president was seen to have discussed with the leaders of major political parties to examine this option but the names discussed, if any, are still not made public. Mr. Abdul Jalil, the General Secretary of Awami League has denied having shared any discussion on this option.
The above series of events suggest that before going to the last option the other options were not exhausted as is contemplated by the Constitution.
President to face challenges of neutrality and commitment
We have left behind the constitutional controversy as the interim government is already formed and the opposition political alliance has accepted the arrangement, though with reservation. The Constitutional controversy having had lost currency the main focus has shifted to the question of neutrality of the President and his commitment to ensure a 'peaceful, fair and impartial' election. This is more a question of expectation than of analysis. It cannot be denied that the President was the BNP-Jamaat candidate for the presidency. It is no denying that BNP Secretary General proposed him to hold office of the Chief Adviser in addition to his own functions as President. The President also expressed his willingness so to do at a moment which could safely be called premature. And he finally took over charge of the Caretaker Government in a way that gave birth to many questions. Therefore the usual neutrality of the President as the head of state has already suffered a bit of set-back. This may be illustrated with the eventful moments between 27th to 29th October leading the President to take recourse to the last option.
In the evening of 27th October the then Prime Minister addressed the nation. Soon after the address she called on the President at Bangabhaban. She had stayed there, as it is thought, more than usual time of a courtesy call. On the 28th October the pre-announced Dhaka-Seize programme by the fourteen party alliances started erupting countrywide violence virtually paralyzing the government. Sometimes at noon that day Justice KM Hasan declined to join the Caretaker government. In the afternoon the President called upon the Secretary General of BNP General Secretary of Awami League and sat with them over the crisis created following refusal of justice Hasan. At a stage of discussion as to who were the other possible constitutional options before the President Mr. Mannan Bhuiyan, the Secretary-General of BNP, proposed the President to assume the functions of the Chief Adviser in addition to his own functions as President. The President was found to be agreeable and expressed his willingness to do so. But Mr. Abdul Jalil, the Secretary-General of Awami League dissented and asked the President not to be involved in political controversy. He requested him to appoint any one else except Justice Aziz as chief of the Caretaker Government in accordance with the Constitution.
Begum Khaleda Zia, the outgoing prime minister addressed a party meeting in the afternoon of 28th October in front of her party office, Dhaka in which she said her party would accept any decision whatsoever to be taken by the President. She called upon the opposition political parties to accept the same. Those who would not accept the decision would be resisted, she proclaimed.
On the 29th October the President was found to switch to the 5th option (as it is so called) i.e., the nomination of a citizen for appointment and in that view sat with the leaders of major political parties. Awami League General Secretary Mr. Abdul Jalil didn't admit having shared discussion about any citizen. Rather he said he requested the President to exhaust the Constitutional options barring Justice M. A. Aziz and appoint any one he finds available in order of the priorities set therein.
Before dusk rumour had it that the Caretaker Government Chief was going to take oath in the evening. The name of the would be Chief Adviser was still in dark and not known to the media , and as it later transpired, even not to Sheikh Hasina, the leader of the fourteen party alliance.
Having resolved all speculations ultimately the oath taking session took place at Bangabhaban in the evening in an unceremonious way. It finally transpired that it was the President who took oath as Chef Adviser in addition to his own functions under the Constitution.
It seemed that strict secrecy was maintained. The major opposition political alliance i.e., the fourteen party alliance and many other dignitaries didn't join the ceremony. It was later known that Sheikh Hasina herself received the invitation to join the ceremony five minutes before it started.
All the above events coupled with the insistence of BNP on holding back Justice K. M. Hasan taken together heavily point to BNP's mission to continue under the shadow of power after the expiry of the tenure of its government. And the whole thing now in place looks like as if BNP has succeeded in its mission.
The reality is that the President is sworn in as the Chief Adviser. He has started his journey with neutrality and credibility disturbed by parochialism in politics. Still he cannot afford to fail. He has no option but to rise to the occasion and go ahead with his prime agenda of inspiring confidence of the people and creating a circumstance congenial to holding a peaceful, free and impartial election, the only way to save the democratic process and the nation at large.
The author is Advocate, Supreme Court of Bangladesh.