In an article titled The constitutional process
, Dr Ahmed Ziauddin writes that the Bangladeshi President broke the constitutionally enforced sequence to appoint himself as Chief Advisor to the Caretaker Government. In essence he acted unconstitutionally and should resign.
From the article;
Here, the constitution leaves no choice for the president but to act exactly in this prescribed order. The use of the word "shall" limits the president's power and obliges him to act without fail.
Moreover, the use of plural to denote "retired Chief Justices" and "retired Judges" means that the drafters of the constitution assumed that there could be more than one retired chief justices and judges. This is reinforced by the use of the expression: "If no retired Chief Justice is available" and "If no retired Judge of the Appellate Division is available" in Article 58C (4) and Article 58C (5) respectively, which suggests that option 1 and 2 are only completed when there is not a single chief justice available or willing to act as chief advisor, so also for the retired judges of the Appellate Division.
This also is common sense interpretation. The drafters of the constitution could not have chosen a retired judge of the Appellate Division while still a retired chief justice was around and willing. Equally, where a retired Appellate Division judge was available, the constitution could not have opted for to search a chief advisor from amongst citizens of Bangladesh.
The idea was rather simple; first exhaust searching retired chief justices, then the retired Appellate Division judges, then from among the citizens of Bangladesh, and only then, if all efforts failed, the president would assume the responsibility.
If sequences of these constitutional mandates are checked with time lines of facts and happenings on the ground, it will be found how the president jumped the queue.
On Friday evening, October 27, the president's office announced postponement of Saturday's (October 28) oath taking of Justice KM Hasan as chief advisor, as he was "indisposed," while immediately, reports appeared in the media quoting persons meeting Judge Hasan around the time, him being in good health, which was confirmed in Judge Hasan's own statement a day later, explaining his inability to accept the position of the chief advisor, where there was no reference of his reported indisposition. That was the first knock to the president's credibility.
In any event, when Judge Hasan declined, the president had no choice but to appoint the remaining retired chief justice Mr Mahmudul Amin Chowdhury. According to news reports, BNP then offered to the president different interpretation to Article 58 C (3) and (4) the constitution against appointing Judge Chowdhury suggesting, that search for retired chief justice stops at two retied chief justices.
Although this is a non-starter argument, because logically a retired Appellate Division judge could not get preference over a retired chief justice, but nonetheless, this was a serious question of interpretation of the constitution which never arose before.
In such a situation, the president had two options; he could have invited eminent legal minds of the country to share their views with him, or, most constitutionally, he should have followed Article 107 of the constitution.
107 is similar to the Governor-General as rights referee
which has been discussed here and enables the Governor-General to turn legislation over to the High Court to be checked for constitutionality before it is passed into legislation. The Bangladeshi Constitution has this style of check and balance in their ceremonial President - Parliamentary system;
Article 107: Advisory jurisdiction of Supreme Court
If at any time it appears to the President that a 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.
So what we have here is a renegade President, acting unconstitutionally, and trying to do an end-run around the constitution and Bangladeshi liberal democracy. That is criminal.
The nation was left guessing, and the president assumed the position of the chief advisor, revealed to the nation only when he was invited to take oath as the chief advisor at the swearing in ceremony. This was an extremely non-transparent way to assume the position of a supposedly non-partisan, neutral caretaker administrator, supposed to ensure holding of a transparent general election.
On the contrary, for the last few days, the former prime minister and other alliance leaders have been telling opposition political parties and the nation that the president's decision will be final and all must abide by that, which suggests that this was a pre-scripted event, where BNP-Jamaat were aware of the president's decision to assume the chief advisor position, as testified by the fact that no name of any eminent citizen was even raised or discussed under option 5. In other words, all was fixed well before the process began.
This is bound to raise serious doubts about the president's honesty of purpose, and one doesn't have to be rocket scientist to guess how transparent and fair the upcoming election would be.
Not good. Bangladesh is facing a usurper of the constitution, backed by the legislative and formal executive in parliament through what appears to be a party-machine, and seemingly no means for the people to sue for the constitution to be followed by the usurper as the highest law of the land.
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