Who Next?

Following is my first "guest" blog entry for www.Dristipath.org/blog

Bangladesh can take a collective sigh of relief; Justice Hassan is embarrassed enough for him decline to take charge of the CTG. Though late, I think good sense prevailed on the good Justice. He was in a no win situation. I am not saying that he would be a bad CTG head (most indicate that he would be a capable leader) but look at the scenario here. What if BNP won an election under him, would AL ever agree? And in the meantime where would the law and order situation go?

So the question begging to be asked is who next? Well I don’t see what the fuss is all about. The Constitution is very clear on this topic.

“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.”

Article 58c (3) Bangladesh Constitution.

The first paragraph basically points to Justice Hassan. But paragraph two states that if “he is not willing to hold the office” then we move to the next retired Chief Justice.

Here lies the confusion. The next retired Chief Justice (ie one before Justice Hassan) as it happens has passed away. So different people are looking at different interpretations. But this confusion can be put to rest if the following clause is read.

Article 58c (4)
“If no retired Chief Justice is available or 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 last and who is qualified to be appointed as an Adviser under this article:”

As far as I remember English. The phrase “if no retired Chief Justice” means that we have to exhaust the list of all other retired Chief Justice [given he is younger than 72 years – as per Article 58c (7)] before we head into the list of retired Judges of the Appellate Division. (ie before Justice Aziz’s name can come into play)

In this case a gentleman by the name of Justice Mahmudul Amin Choudhury is the next constitutional choice. As far as reports go AL is okay with him. Shiek Hasina has stated this without naming him, saying AL will agree to the next constitutionally ordained person. Supreme Court Bar Association plus many of the “Civil Society” seems to be in favour. It is now for BNP to “agree”.

It will then be upto Justice Choudhury now to appoint his “cabinet”. Article 58c(8) states:
"The Advisers shall be appointed by the President on the advice of the Chief Adviser."

And collectively their main responsibility will be to as per Article 58d (1) & (2):
“Functions of Non-Party Care-taker Government:
(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.
(2) The Non-Party Care-taker Government shall give to the Election Commission all possible aid and assistance that may be required for bolding the general election of members of parliament peacefully, fairly and impartially.”

An interesting point to note is Article 58e
“Certain provisions of the Constitution to remain ineffective
Notwithstanding anything contained in articles 48(3), 141A(1) and 141C(1) of the Constitution, during the period the Non-Party Care-taker government is functioning, provisions in the constitution requiring the President to act on the advice of the Prime Minister or upon his prior counter-signature shall be ineffective.”

The above-mentioned clause hence allows the President not (yes that is right – NOT) to listen to the advice of the Caretaker Government! “…provisions in the constitution requiring the President to act on the advice of the Prime…shall be ineffective” Effectively what this means is that the President practicality exercise supreme power when it comes to the functioning of the Government.


Source: The Constitution of the People’s Republic of Bangladesh. {As modified up to 31st December 1998}
Issued by the Government of People’s Republic of Bangladesh. Ministry of Law, Justice and Parliamentary Affairs