"Bangladeshi President Iajuddin Ahmed has been sworn in as the head of the interim administration that will oversee national elections in January, in a ceremony broadcast live on television"
. As we
discussed last week
, the Bangladeshi Constitution covers the appointment process for the Chief Adviser position in the care-taker government.
The constitutional requirement for the position of Chief Advisor is in Section 58C(3) of the
(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 retired Chief Justice.
(4) If no retired Chief Justice is available or willing to hold the office of Chief Advise, 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.
(6) 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 Care-taker Government in addition to his own functions under this Constitution.
For the President to take the Chief Advisor position it would require no judge, or no citizen of Bangladesh with suitable qualifications wanting to do it.
Drishtipat, an expat Bangladeshi site has comments on the issue
Nazim Farhan Choudhury
So the President can be the head of the CTG. BUT and this is a big but, he can only do so if "provisions of clauses (3), (4) and (5) cannot be given effect to".
Clause (3) talks of all the Chief Justices. Clause (4) talks of all the Judges of the Appelate Court.
Clause (5) talks of a consensus candidate.
So without asking the next in line (ie Mahmudul Amin Choudhury) and those after him, the President cannot jump to Clauses (5) or (6).
The horse has bolted, but I bet the Constitution writers are now wishing they could repeal 58C(6) and make the Chief Adviser position go right through Bangladesh's provincial and local courts for suitable candidates first.
a comment on Drishtipat
with the points in Iajuddin's acceptance(?) or self-appointment speech;
1. I am addressing you at a grave time.
2. You know a caretaker government is to be announced.
3. As per constitution, KM Hassan refused. Monirul Reza Choudhury is dead.
4. Appealate division's MA Aziz is unqualified as he is CEC.
5. Hamidul Haque refused if there is not consensus between all party.
6. According to Article 58 (5) I had discussions with all parties to find a compromise candidate. While I earnestly hoped that all party will be able to agree to a person. Unfortunately this has not happened.
7. Hence I have to take over as the Chief Caretaker.
8. Law and order has broken down over the last few days and therefore there was no alternative than for me to take over as CTG head.
9. Whatever needs to be done to protect our rigths must be done.
10 I hope everyone including all parties will support me.
11. I am seeking advice of all parties to help me nominate 10 advisers who will help in putting together the Army.
12. I hope there is be peace and within the stipulated time we can hold electons.
13. Allah Hafez and Bangladesh Zindabad.
It should also be noted that the Bangladeshi Constitution excludes the Caretaker Government [CTG] from making policy. From 58D(1);
(1) The Non-Party Care-taker Government shall discharge its functions as an interim government and shall carry on the routine functions of such government with the aid and assistance of persons in the services of the Republic; and, except in the case of necessity for the discharge of such functions its shall not make any policy decision.
The Bangladeshi President is a ceremonial role, the fear is that with the President becoming the Chief Adviser to the caretaker government, the President's role will go from ceremonial to controlling executive and legislative functions. Section 58D(1) is supposed to stop this, but given the President's willingness to place themselves in this position of greater power it does not bode well for Bangladesh.
This also acts as a warning for Constitution writers, never leave a clause in which can give one person control of more than one branch of government - ceremonial or not. I have my fingers crossed for the Bangladeshis; liberal democracy has managed to survive past violence and destructive politics there, hopefully this is nothing more than a bump.
More Reading on Bangladesh
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