Law Alter Views
President's use of Article 106: Necessity, limitations and no-limitations
Sinha MA Sayeed
In the face of any necessi-ty/compulsion of President's seeking any reference to the Supreme Court of Bangladesh, the head of the state under the existing parliamentary system of govern-ment is not constitutionally free to move on his own; rather his powers are subject to Article 48(3). In fact Article 106 ------ if at any time it appears to the President that 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 ------- must be read with Article 48(3) ------ in the exercise of all his functions, save only that of appointing the prime minister pursuant to clause (3) of Article 56 and the Chief Justice pursuant to clause (1) of Article 96, the President shall act in accordance with the advice of the prime minister.
Under parliamentary system of government, reintroduced in 1991 through 12th Amendment to the constitution the President constitutionally cannot under any circumstance apply Article 106 even if it is unanimous call of the people in a given period of time. It was found in the past, in 1995-1996, that constitutional experts and politicians including intelligentsia of various shades talked without any check and balance in favour of President's use of Article 106 at his own; and it is apparent again today in 2006. Above all it is more interesting to note that the 12th Amendment to the constitution was passed unanimously by all the members of parliament belonging to different political parties in the fifth parliament and not a single voice was heard against it.
To our utter surprise, while the political leaders were over flooded with a sense of victory by passing the 12th Amendment, it was Justice Shahabuddin Ahmed, then Chief Justice of Bangladesh who, after coming back to the same office through 11th Amendment, apprised the nation of his sincere effort that he, then as the Acting President of the country under the presidential form of government introduced by fifth Amendment and strengthened again by the seventh Amendment, told both Khaleda Zia and Sheikh Hasina to give due weight to the President's overall importance as the head of the state under the re-emerging parliamentary system of government.
While delivering a speech at the reception accorded by the Supreme Court Bar Association on October 10, 1991, he, with a painful bent of mind, also expressed that the political parties in the fifth parliament vied each other on question of making the office of the President so nominal and symbolic that in the end it culminated in to lowering the powers and functions of the President to the bottom; looking at the 12th Amendment he commented: The President has now virtually nothing to do but to offer prayer at the graveyard and/or attend milad mahfil.
Dr. Kamal Hossain, Chief architect of the Constitution of Bangladesh, during the 24N months long imbroglio from 1994-96, knowing very well of the powers of the President under Article 106 read with Article 48C, in an article titled 'President Should Resume the Dialogue? published in The Daily Star on March 30, 1999, wrote: Today a consensus has been achieved on the basic issues (even if belatedly) that is on the need to hold as soon as possible the election to Parliament under a neutral Caretaker Government. There is continuing controversy between the government and the three-party opposition on the modalities of procedures for installing a caretaker government, which drags on as both sides continue rigidly to maintain their respective position.
"The President in response to the urging of the political parties including the ruling party, professional and conscious citizens from all walks of life had on 10th March initiated a national dialogue. This raised hopes among the people. The President consulted three former Chief Justices, had meetings with all the parties represented in the last parliament, and with a number of lawyers towards finding a way to resolve the present crisis.
"We, on behalf of Gonoforum, had met with the President and subsequently sent him our written proposal urging that a caretaker government be expeditiously established and power transferred to it. A consensus was discernible on the appointment of a retired Chief Justice, either Chief Justice Shahabuddin Ahmed, who had successfully headed the last caretaker government and carried everyone's respect by the impartial manner in which he had discharged his responsibilities, or if he, for any reason, was not able to accept this responsibility, then the immediate past Chief Justice. If the procedural disagreement continued, the former Chief Justices would be consulted and thereafter this matter would be referred under Article 106 of the constitution to the Supreme Court for an advisory opinion. Since the Supreme Court is the ultimate authority to interpret the constitution it is reasonable to expect that, if this course is adapted all political parties would accept the opinions delivered by the Supreme Court and proceed to implement it."
If the valued opinion of the Bangladesh constitution maker is examined in the true perspective of the constitution having due attention to Article 48 (3), the unfolding truth shall be that even Dr. Kamal Hossain neither spoke to come out of the limitation of such constitutional provision of article 48(3) nor emphasised the need for any constitutional reforms therein. Rather the chief architect of the constitution of Bangladesh even in the face of longstanding crisis did prefer the existence and continuance of such article hanging over the head of the President under parliamentary system of government: but ironically his indirect/implied urge to the President for taking initiative on his own has also been manifested which is a kind of contradiction about the role of the President in times of necessity as opposed to president's constitutional limitations in doing so.
This is very much reasonable and relevant to cite here that in an article titled, "For a President who can take an initiative" published in The Daily Star on March 30, 1996, I made attempts to point out how President's helplessness arising out of constitutional limitations became a reality; to strengthen the hands of the President constitutionally I put forward a few recommendations of which the following deserve to be recalled here:
1) Let there be a constitutional provision through a further Amendment to the power and functions of the President to the effect that as the head of the state, as the custodian of the constitution and as the commander-in-chief of the armed forces, President of the Republic shall enjoy a set of powers to deal with a national crisis, political or otherwise, provided the party-in-power fail to cope with it positively within the time frame, say, 60/90 days.
2) Let the president be enlightened with necessary powers so that he may, under the above circumstances, seek a reference to the Appellate Division of the Supreme Court at his own without a prior advice from the Prime Minister. To suit this purpose, both the ruling and the opposition party have to be accommodative, up to date with the emerging concept of the role of the President under a Parliamentary system of Government.
Therefore it is crystal clear that under parliamentary system of government of Bangladesh's nature the hands of the head of the state are tied to constitutional provisions under Article 48 (3). This period of party-run parliamentary system of government may be termed as Phase one from the point of view of President's use of article 106.
On the other hand 13th Amendment to the constitution introducing non-party, neutral caretaker government in place of interim political government after the dissolution of parliament has turned constitutional weak president into constitutional strong president. With such rise and fall of the powers and functions, his power to use Article 106 has been reversed by the insertion of clause 58B (2) ----- the Non-Party Caretaker Government shall be collectively responsible to the President, and 58D (1) ---- the Non-Party Caretaker Government shall discharge its functions as an interim government and as such carry on the routine functions of such government .......... and, except in the case of necessity for the discharge of such functions it shall not make any policy decisions. Thus Article 48 (3) automatically becomes inoperative meaning that the president now may use article 106 whenever he feels so in the context of national necessity and importance. This period may be called phase three as well.
This is, pursuant to the Article 58C(2), also truly applicable even during the tenure of the party-run caretaker government for fifty days after the dissolution of parliament; further because of the instant operation of the article 58B (2) after the dissolution of parliament, President shall not be so bound by the advice of the Prime Minister to apply article 106, if need arised. The period may be marked as Phase two: because this period exists in between phase one and phase three fundamentally.
After the dissolution of the 8th parliament on October 27, 2006, President professor Dr Iajuddin, by virtue of the constitutional provisions, could have used article 106 to seek advisory opinion of the Supreme Court to settle the opposing approaches to the interpretations of article 58C (3) and (4) and 58C (7) (b) in particular. Instead, after assuming the office of the Chief Adviser, he in a live broadcast said to the nation that he had taken advice from the Attorney General on the constitutional interpretations of those articles. Why President Professor Iajuddin avoided article 106 when it was of most necessity not only for him but also for the nation, is not clear at all. By setting aside article 106 he has, in fact, kept the interpretations finally unresolved: in future this may be a big problem for the next President while deciding the constitutional choice for the office of the CTG: because the opinion of the Attorney General is not the final one as he is representing the government only; such interpretation leaves enough scope to raise the issue before the Supreme Court either by the President at the time of the appointment of Chief Adviser to the next CTG under article 106 or by any citizen of Bangladesh.
Therefore President's use of article 106 in three phases/ perspectives is very much fortified constitutionally and the President shall feel more relaxed and free to apply such article in phase two and three; any sort of debates on or ambiguities of such use of power may simply be waste of time and energy. Let our political leaders, lawmakers, constitutional experts including intelligentsia of various shades of opinions pragmatically and constitutionally, not mere politically, realise this truth.
The author is former international, publicity & publications secretary of Jatiya Party and faculty member of Newcastle law academy.