Column by Mahfuz Anam: What are our president’s powers?
The question in the title of this column was triggered by a press comment following our president's dialogue with National Awami Party (NAP) leaders, published on December 27, 2021. Ivy Ahmed, its executive president, quoted the president as saying, "You are aware of my powers. I will try to materialise your demand with(in) all these limitations."
So what are our president's powers? Is he as powerless as the constitution makes him out to be? Like others, our constitution is a composite of ideals and principles and a legal framework to realise them. The spirit of democracy, freedoms, rights, economic prosperity, equality, tolerance, diversity, etc are all as much a part of the constitution as its specific articles, clauses and sub-clauses are. Seeing one delinked from the other will lead to missing the bigger picture.
Our constitution says, "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 95, the President shall act in accordance with the advice of the Prime Minister." So, it is very clear that our president has no power save the above mentioned two.
But there is a bigger picture. Outside the legal powers, there is another power that the president enjoys, and in which he has no rival: moral authority. There is no other office that rivals that of the president in this regard. In fact, his office is designed to exert more moral authority than the legal ones. His most coveted status in the hierarchy of leaders, most luxurious accommodation, the best of everything that the country can afford and hundreds of staffs and perks unmatched within the country, and most significantly, his immunity from prosecution for any action or omission—placing him, for all practical purposes, above law—are all designed so that he is beyond all controversies and suspicion, thus protecting his pristine status. The "moral authority" of this office makes it the final source of justice, fair play and national stability—an office to which rival political parties and contending sections of society can turn to for guidance and solution: the ultimate crisis solver.
That is why, even though a president is appointed by the government of the day, the office of this highest constitutional post is allowed to remain above all political play and not be seen to be used by the government for its partisan end. This, in fact, imposes an ethical responsibility on the executive branch to exert restraint, foresight and circumspection in how it relates to the office of the president.
Our government has mostly followed this principle. But when it comes to anything to do with elections, every caution, norm and good practice are thrown to the wind.
Even though it was done before, was it wise of the president to entangle himself in a process leading to the formation of the next Election Commission, which may be a constitutional body but has now become among the most controversial of institutions? As he was himself a part of the last "search committee" formation and had seen first-hand how the process worked, shouldn't he have maintained a distance, rather than getting involved again? Seen against the background of how subservient some of our past chief election commissioners (CECs) proved to be—especially the last two—shouldn't the president have known better?
After the fall of Gen Ershad's autocratic regime in December 1990, a total of eight Election Commissions with their eight respective CECs have been appointed. Of them, three—Justice Abdur Rouf, Mohammed Abu Hena, and ATM Shamsul Huda—were appointed by the caretaker governments. Justice AKM Sadeq, MA Sayed, and Justice MA Aziz were appointed by the BNP. Two of them were forced to resign and only one, MA Sayed, could complete his term—though amid controversy. Kazi Rakibuddin Ahmad and KM Nurul Huda were appointed by the Awami League and served as the last two CECs. Their tenures faced lots of controversies not only for how they conducted the last two general elections, but also for how, in general, they ran the commission, how sensitive they were to the legitimate criticism made, how they handled the various election-related complaints lodged with them, and the arbitrary manner in which they conducted the business of the Election Commission itself. The most infamous incident occurred under Kazi Rakibuddin, when a total of 153 MPs out of a House of 300 were elected unopposed in the January 2014 election, resulting in the majority of House members getting "elected" without a single vote cast. Surely, a world record. In the case of the last Election Commission, in addition to all the previous complaints, there were also questions of financial impropriety, not to speak of allegations and suspicions of large-scale vote-casting the night before in the last general election held in December 2018.
Just as in imparting justice, and also in conducting national elections, the process has to not only be correct, but also seen to be correct. An ideal many of our CECs, especially the last two, seem to have been oblivious to.
It is our view that by conducting the dialogue itself, and especially because he has no power to ensure its ultimate outcome, the president has allowed himself to be dragged into a process which is structurally political and inevitably controversial. This is proven by the fact that several political parties have already refused to partake in the dialogue, saying that they have no faith in the acceptability of its outcome—no doubt, an embarrassment for the occupant of highest constitutional office.
So what options did the president have? Could he have declined to hold the dialogues? That would have been a cause of serious embarrassment for the government. But he could have negotiated some process that would have added more credibility to the outcome.
Here, we feel, the "Moral Authority" of the president could have played a positive role. The government knew very well that involving the president lent enormous credibility to the process. The president, in turn, could have significantly added to the credibility of the whole exercise by ensuring that the process remained without interference. The president could have insisted that the government commit to enact a law on formation of the Election Commission within the shortest possible time. The government, we think, in deference to the importance of the president's office, would have acquiesced to that.
At least it was worth a try, to fulfil the letter and the spirit of our constitution.
Mahfuz Anam is the editor and publisher of The Daily Star.